P 685 
.P962 
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SPEECH 



OF 



A- Mi4i 



HON. GEORGE S. PUGH, OF OHIO, 



ON THE 



CONDITION OF AFFAIRS IN KANSAS TEMITOM. 






'j^' 



DELIVERED 



IN THE UNITED STATES SENATE, MAY 26,. 1856, 



-^OT- CCf^^^^ 






WASHINGTON: 
PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 

1856. 



AFPAIES IN KANSAS. 



The bill to authorize the people of the Territory of Kan- 
sas to form a constitution and State government, preparatory 
to their admission into t)ie Union when they have the requi- 
site population, being under consideration, 

Mr. PUGH said: The condition of affairs in 
Kansas Territory, for the past year, has been such 
as to fill the heart of a patriotic statesman with 
unaffected sorrow and alarm. Together, like twin 
sisters, that Territory and the Territory of Ne- 
braska came into existence, on the 30th of May, 
1854, by virtue of one act of Congress, and with 
organizations in all respects the same. In Ne- 
braska, so far as we can learn, quiet and order 
have prevailed, and the foundations of a prosper- 
ous State have been securely established. But 
Kansas, almost from the hour of its birth, has 
been the arena of conflict, violence, and blood- 
shed. These disorders became more intense, as 
■well as more frequent, from month to month, until 
the assembling of Congress in December last; 
and at an early period of the session — before the 
House of Representatives had notified us of its 
organization — attained a serious degree of import- 
ance. The season in which we are accustomed 
to celebrate the advent of the Prince of Peace on 
earth — when, of old, the angels, in manifest glory, 
proclaimed " good will "to all mankind — that sea- 
son, so sacred and festal, brought us tidings of 
the most terrible character; tidings that discon- 
tent had ripened into rebellion, and strife pro- 
ceeded to the bitterness of civil war. The prom- 
ises of the new year came not to soothe our 
anxieties; but, instead, a solemn message from 
the President, advising us that all the appliances 
of conciliation had been exhausted, and that we 
must prepare for an appeal to arms if we would 
maintain the supremacy of the laws. And now, 
since the last adjournment of the Senate, even 
more dreadful reports have reached our ears; and 
the " bloodylssue " threatened, as well as foretold , 
by the convention which met at the Big Springs, 
in September, presses onward to a fiercer stage 
and still more frightful consequences. In this 
great emergency, Mr. President, each Senator 
and Representative of the United States in Con- 



gress, ought to regard well his course, and be- 
waVe, lest through him, our mighty Republic 
should come to a fatal and inglorious ruin. 

These reflections indicate with suflicient clear- 
ness the path I shall endeavor to tread. And it 
is rather to my constituents, for my own sake, 
that I now proceed to declare the conclusions, 
both of law and fact, in reference to the general 
question, at which I have deliberately arrived. 

And first in order, I come to the substitute 
offered by the Senator from New York [Mr. 
Seward] to the bill reported by the Committee 
on Territories. That proposes the admission of 
Kansas into the Union as a State, upon the con- 
stitution adopted by the convention of delegates 
which assembled at Topeka on the 23d of Octo- 
ber last. To this, sir, I have two preliminary 
objections, and each of them is insuperable: 

1. I do not believe that the Territory contains 
rnoro than twenty-four thousand inhabitants; and 
not that number, certainly, if one half the accu- 
sations made by the Senator from Vermont, 
[Mr. CoLLAMER,] in his speech, some weeks 
ago, be true. The votes given at the regular elec- 
tion for a Delegate in Congress, last fall, together 
with those which Andrew H. Reeder pretends 
to have received, on the second Tuesday of Oc- 
tober, amount to some six thousand; and as the 
inhabitants are chiefly men without families, or 
men who have left their families in the States 
whence they emigrated, I consider it a liberal 
estimate — and, indeed, an extravagant one — to 
say that the population is equal to four times the 
number of voters. The Senator from Vermont 
does not claim, in his report, more than twenty- 
five thousand. 

To countervail this fact, as far as possible, the 
Senator from New York asserts that no specific 
number of inhabitants is required, by the Con- 
stitution, for the admission of any State. Per- 
haps, sir, such a requisite has not been expressed 
in terms; but when the Constitution declares, 
article first, section second, "the number of 
Representatives [in Congress] shall not exceed 
one for every thirty thousand, it was intended, I 



think, to fix that number as the least constitu- 
ency to be allowed for a Representative, except 
in the case of an original State, or a State admit- 
ted with a larger population, and reduced, by- 
emigration, or some other cause, below the stand- 
ard. 

If this were otherwise, however, I should not 
be disposed to admit any State with so meager 
a population. It would be unjust to New York, 
or Pennsylvania, or Ohio, or Virginia, if her vote 
could be nullified, in this House, by the vote of 
two Senators, representing a less number of in- 
habitants, by two thirds and more, than the act 
of Congress prescribes for the constituency of a 
single member in the other House. 

2. TheTopeka constitution never was adopted 
by the citizens of the Territory, nor even by a 
respectable number of them. It did not receive 
more than seven hundred and nineteen votes, all 
told, in a Territory which contains five or six 
thousand legal voters. Tliere is no pretense, in 
the papers submitted to us, that the people ever 
ratified it. The petitions from Leavenworth, 
presented with the constitution, make no such 
claim. They intimate, to be sure, that the people 
would have ratified it on the 15th of December, if 
the polls had been regularly opened, and the elec- 
tion allowed to proceed. Whether this be scf, 
or otherwise, I cannot decide; but I am certain 
that no ratification — such as the Constitution 
itself requires — ever was given. I cannot hesi- 
tate to say, therefore, that the " State of Kansas" 
is a mere fiction, and its governor, legislators, 
judges, et cetera, are but titular dignitaries. 

I do not think it worth while, at present, to 
urge any other objection; the facts are plain, and 
their legal effect is beyond all disputation, or the 
necessity of serious comment. 

It is next suggested rather darkly in the 
"views" submitted by the Senator from Verr 
mont, as a member of the Committee on Territo- 
ries, that we should annul, ab initio, the proceed- 
ings and action of the late Territorial Legislature. 
This would be an extraordinary, and, indeed, 
high-handed exercise of power — one for which 
there is no precedent, so far as I can discover, in 
jhe history of congressibnal enactments. I must 
have a very clear case to warrant me in such in- 
terference; and that case must establish, by cer- 
tain and unanswerable testimony, these proposi- 
tions: 

1. That the members of the Legislature, or a 
majority of them, were not properly elected. 

2. That their acts of leg.slation are of a char- 
acter intolerable to Americun citizens. 

3. That there is no rurncdy, less violent, for 
the evils alleged. 

Because, sir, it is a serious matter to avoid, in 
toto, a body of statutes under which marriages 
have been celebrated, estates distributed, property 
acquired, and rights otherwise established. I am 
not prepared to say that such an abrogation of 
the statutes, ex post facto, would cancel marriages 
or divest estates; but it would give rise to many 
doubts, and great confusion, uncertainty, and 
distress. 

The Senator from Vermont has endeavored to 
show, in his report and by his speech, that the 
Territorial Legislature was — to use his own lan- 
guage — a " spurious foreign" Legislature; or, in 
other words, that its members were not elected 



by the bona fide residents and voters. He has 
likewise asserted, that some of the laws which it 
enacted were peculiarly oppressive and tyrannical. 
But I do not discover, in his report or his speech, 
or in the speeches of his coadjutors, even a remote 
allusion to the last, and, after all, most important 
of the requisites I have specified. Let us admit, 
for a while, that his accusations are literally true: 
is there no redress on this side of revolution .' In 
my judgment, sir, there is. A new House of 
Representatives will be chosen in October, and in 
one year from that time a new Council. If the 
Governor — armed as he now is with the military 
power of the Union — should repress invasions or 
tumults at the election, and secure to the inhabit- 
ants an unmolested right of suffrage, cannot all 
obnoxious laws be repealed according to the reg- 
ular and accustomed form ? 

The Senator declares this impossible, however, 
until after the election of 1857; because, he says, 
the councilors, already chosen, will resist to the 
uttermost the wishes of the other House. I take 
such a suggestion to be, upon its face, rather im- 
probable; but, as an extreme case, let us imagine 
it to be well founded. What then? Is the con- 
dition of the citizens of Kansas any worse than 
that which has, at times, befallen the citizens of 
a State.' How often, sir, have the citizens of 
Indiana been deceived by the professions of legis- 
lative candidates, and induced to bestow their 
confidence only to find it betrayed without scruple, 
and themselves bitterly oppressed ? It has hap- 
pened, and too frequently, in the State of Ohio. 
But, sir, neither the citizens of Indiana, nor those 
of Ohio, ever dreamed of redress except through 
patience, submission for the present, and a change 
of rulers in due time. Are the citizens of Kan- 
sas so much better, I ask, that we must invent 
some unexampled remedy, next to a forcible rev- 
olution, rather than exact of them a little for- 
bearance? 

But, sir, let us proceed to the other requisites 
I have specified, and see if the Senator from Ver- 
mont can establish either of them. First, then, 
is the question whether the Territorial Legislature 
of Kansas was a " spurious," or a valid. Legis- 
lature. It seems to be taken as true, in both the 
reports submitted from the Committee on Terri- 
tories, that in seven districts — represented in the 
Legislature by three councilors and nine repre- 
sentatives — the election of March 30, 1855, was 
tumultuous and irregular. We have heard much, 
here and elsewhere, of the conduct of certain citi- 
zens of Missouri upon the border of Kansas, who 
are charged with having invaded the Territory in 
organized companies, with arms in their hands, 
with music and banners, and driving the qualified 
voters from the polls. When we come, however, 
to the specification of all these charges — when we 
demand the occasion, the place, the circumstances 
— in every instance, so far as I have been able to 
discover, the venue is laid in one or another of 
the seven districts, or in some precinct where the 
returns of the election were disregarded. That 
violence may have occurred elsewhere — that the 
right of suffrage may not have been exercised, in 
every instance, with as much freedom as it should 
have been — that illegal votes may have been re- 
ceived, and legal votes rejected — these things, 
Mr. President, may have transpired. I cannot 
deny the assertion; nor, certainly, can I affirm it. 



No testimony to that effect has been produced 
here; none has been discovered b}' the Comnnittee 
on Territories, or even by the Senator from Ver- 
mont, a member of that committee, who dissents 
from the conchisions at which his colleagues 
orrived. Neither the Housv of Representatives, 
nor its Committee on Elections, after a delibera- 
tion of two or three months, could find any such 
evidence; and, as a last resort, an expedient of 
the most desperate character, three gentlemen 
have been appointed to visit the Territory, well 
provided with money and political influence, 
armed with unlimited power to send for persons 
and papers, in the eager hope of discovering some 
fact, supported by the oath of some person, to eke 
out the multitude of assertions so lustily and 
recklessly made fora year past in public speeches, 
arid through the newspapers. 

In this emergency, sir, the faith of the Senator 
from Iowa [Mr. Harlan] soared above all diffi- 
culties, lie exhorted us to adopt these assertions 
as matters of history, and not as matters contro- 
verted between rival parties, unsustained by offi- 
cial records, and to be established (if at all) upon 
clear and authentic evidence. He compared the 
assurance of their correctness, derived from' the 
vague declarations ofinterested witnesses, anony- 
mous writers, private correspondents, itinerant ! 
lecturers, partisan newspapers, not only with our 
assurance that Louis Napoleon is the ruler of the 
French empire, but even — I deplore such a com- 
parison — with our assurance that the " Savior of j 
mankind was once made manifest in the flesh." 
Yes, Mr. President, as matters of history, that 
was the phrase. How it may have been, sir, 
with others upon that occasion,! know not; but, 
for my part, I was forcibly reminded of BoUng- 
broke's bitter apophthegm, " All history must be 
false!" 

The Senator is not alone, however, in this 
achievement. Certain members of the Ohio Legis- 
lature, with a lofty contempt for particulars, with- 
out any regard to the acknowledged sources of 
truthor rules ofevidence, have comprehended, as- 
certained, and decided the whole question. They, 
forsooth, knew all about it. Naught, sir, did 
they care for the committees, or the commission- 
ers, designated in either House of Congress: 
their eyes beheld, their ears heard, accurately, 
what transpired at the distance of more than a 
thousand miles. And they seem to have post- 

Soned the transaction of their proper legislative 
usiness, deferred the performance of their own 
duties to another year, in order, graciously, to 
" instruct" my colleague and myself, as well as 
twenty-one members of the other House, and the 
Governors of all the States in the Union, how to 
solve a disputed question of fact. Sir, I believe 
the citizens of Ohio will regard such behavior — 
as I regard it — a mere and empty ebullition of 
partisan zeal. 

I repeat, Mr. President, violence may have 
occurred in other districts or precincts than those 
specified; but there is no evidence of it, and noth- 
ing to render it even probable. When the fact 
shall have been established — if it ever can be 
established — by such testimony as we ought to 
receive in a case of great and solemn interest, I 
will be ready to act with some degree of confi- 
dence. At present, however, I do not believe 
that either a majority of the Council, or a ma- 



jority of the House of Representatives, consti- 
tuting the Territorial Legislature of Kansas, were 
unduly elected, or that the Legislature was, in 
any sense, a " spurious" one. I should not be 
astonished, sir, if some degree of turbulence had 
prevailed in every precinct and at every poll. 
That would only be in keeping with the course 
of elections elsewhere in the United States for the 
last eighteen months. None of the scenes de- 
picted as having occurred in the seven districts 
of Kansas, on the 30th of March, 1855, exceed, 
in tumultuous array, or in the other qualification 
of banners, music, and fire-arms, the scones which 
transpired at Cincinnati on the first Monday of 
April, in the same year. Nor were the conse- 
quences, in any respect, more alarming and sor- 
rowful. For days and nights together a furioua 
mob kept that city in almost breathless fear — as- 
saulted, time and again, the habitations of inof- 
fensive men, feeble women, and helpless children — 
and was subdued, at length, by an appeal to 
arms, and at the sacrifice of human life. I will 
not relate what is said to have occurred at Louis- 
ville and at New Orleans during that year. Those 
are matters which I know only from report. 

But I wish to remind the citizens of Ohio that, 
whilst a majority of their Legislature had tears 
to shed over the turbulent elections of Kansas 
Territory, it looked with calm and even cold 
indifference at the violence, the bloodshed, the 
inexcusable wickedness, perpetrated at an elec- 
tion held in their own midst. No man has been 
punished for these transactions; no man has even 
been prosecuted. The " cause " of the Kansas 
insurgents is commended, by legislative resolu- 
tions, to the " warm sympathies " (if the public; 
but the outrages inflicted on our citizens at home 
have not been thought worthy of notice. The 
ears of the Governor and the Legislature were 
deaf, pertinaciously, to the appeals of our own 
people: they would hear the " shrieks for free- 
dom"afarofr, thousands of miles, in Kansas Ter- 
ritory; but as for the occurrences in Cincinnati — 
the destruction of ballot-boxes, burning of ballots, 
poll-books, and tally-sheets, driving of judges 
from their places, abusing the Mayor in the exe- 
cution of his office, beating and wounding peace- 
able voters, firing muskets and pistols into houses 
filled with women and children — establishing a 
reign of imminent terror throughout one third of 
the city, and alarming all the rest— these were 
matters of no consequence! 

The Senator from Vermont feels the urgency 
of this question, and has undertaken, therefore, 
to demonstrate that the foray of the Missouri 
border-men must have extended into other dis- 
tricts than the seven already specified. His 
argument depends altogether upon the fact that, 
by the census taken in January, 1855, it was 
ascertained that the Territory contained two thou- 
sand nine hundred and five voters, whereas at the 
election,(March30,) more than six thousand votes 
were cast. 

To this, however, a conclusive answer was sug- 
gested by the distinguished Senator from Illinois, 
[Mr. Douglas,] upon the spur of the moment; 
it is, that the Territory was opened for settlement 
late in the previous year, and few immigrants 
had time to do more than select their locations, 
and mark out the limits of their "claims" for 
preemption; or, at furthest, break up the soil, 



and sow grain for the ensuing season, when the 
winter overtook tliem. Without houses or other 
shelter— without food , or even a change of raiment 
—in a wild crfuntry— what course could these men 
take, Mr. President, except return to their former 
abodes in Illinois, Indiana, and Kentucky, or 
seek refuge in the border settlements of Missouri ? 
And, sir, hundreds of these very men — cmi- 

f rants from other States, (some even from New 
Ingland,) sojourning in Missouri for the winter 
*— men who had " claims" staked off, and crops 
■planted in Kansas, are styled "non-resident 
voters," "border ruffians," " Missouri invad- 
ers," because they repaired to the Territory in 
March, 1855, and voted at the election. Had 
they a ri^ht to vote ? To be sure , Mr. President, 
their fam'ilies were not in Kansas, because they 
had not erected even cabins upon their farms to 
protect those families against the snows of winter ; 
but they were bond fide residents of the Territory, 
and qualified voters in every conceivable sense. 
Even Governor Reeder, as the exec\itive minutes 
will show, had not his family in Kansas at that 
time; yet no man denies, 1 imagine, that he was 
an actual inhabitant, and, as such, entitled to the 
right of suffrage. 

Tlicse circumstances, Mr. President, show that 
the census cannot be taken as a fair indication of 
the number of legal voters. It was ordered on 
the 15th of January, but the fact is recorded out 
of its proper place, in the executive minutes, by 
more than a month, It only appears after three 
entries, dated February 27th, and by that time 
the census was almost completed. I do not pre- 
tend to give a reason why this was done; but cer- 
tainly, if an, inhabitant of Kansas, domiciled in 
Missouri for the winter, had gone to the records 
of the executive office, at Shawnee Mission, he 
could not have learned the time, or the manner in 
which, or the persons by whom, the census was 
to be taken. When Ca;sar Augustus promul- 
gated the famous decree, " that all the world should 
be taxed," notice was given for every man to re- 
turn " into his own city," and there be assessed; 
but when Governor Reeder wished to enumerate 
the inhabitants of Kansas Territory, in order to 
ascertain the legal voters, it does not seem that 
any notice was given, or, indeed, any record 
made, until the census had been nearly or quite 
finished. 

Before the 3d of March, as the executive min- 
utes show, all the returns of the enumeration had 
been delivered to tlie Governor; so that the cen- 
sus was taken at the most inclement season of the 
year, in a country where few houses had been 
erected, and when one li(alf the inhabitants, or 
more, had been compelled to seek shelter at their 
former places of residence, or in the neighboring 
State of Missouri. 

The election was lield on the 30lh of March , 
1855, in virtue of a proclamation dated twenty- 
two days previous. Is it wonderful, in such cir- 
cumstances, that all those residents of Kansas 
who Were sojourning in Missouri should have 
rushed into the Territory, should have voted, and 
should even have returned to their places of tran- 
sient abode in Missouri, to await the coming of 
mild weather before removing to their farms in 
Kansas, and commencing to build their liouses .' 
Tlve 30th of March is a bleak season in that lati- 
tude. Itisnotatime,sir,at which any man could 



well afford to live in tents, or commence, upon 
the prairies, to erect a permanent habitation. Is 
it wonderful that hundreds of the people of Kan- 
sas, who had returned for the winter to Illinois, 
Indiana, and Kentucky, should have made haste 
to regain the Territory in order to vote, and then 
sought a present shelter in the cities or towns of 
western Missouri? Is it even wonderful, sir, 
that in all this confusion and tumult, when the 
Territory was without laws, and almost without 
a government; while thousands of absentees en- 
titled to vote were speeding toward Kansas; while 
every steamer which ascended the river, day after 
day, was crowded with new-comers and return- 
ing settlers, — that the vague rumors of a great 
Massachusetts corporation, with millions of cap- 
ital, organized for the purpose of securing the 
best lands of the Territory, and, by pouring in 
a flood of New England fanatics, not only ex- 
cluding others from a choice of favorable loca- 
tions, but establishing a colony from' which of- 
fensive operations could be set on foot against the 
property and the peace of Missouri — even if these 
rumors were entirely without excuse, even if 
none of the persons sent out by the corporation 
had carried arms of a new and peculiarly destruc- 
tive character, or indulged the Jeast aggressive 
speech or threat — should have influenced some of 
the citizens and young men of western Missouri, 
alarmed for their safety at home, or wishing to 
obtain locations in Kansas, or instigated by a 
sense of injury, well or ill founded, to join in the 
multitude of those who were rushing into the 
Territory, or proceed in companies, with arms 
dis])layed, with drums beating, and colors flying, 
(although this part, I believe, is mere exaggera- 
tion,) and engage in the general disturbance — 
some to seek their fortunes in the new commu- 
nity, some to create mischief, some to vote, some 
to drive voters from the polls, some to make 
speeches, and some only to make a noise .' 

Sir, these excesses are not uncommon in the 
older States of the Union, and far less in the 
western and southwestern States. They were, 
u))on this occasion, the inevitable results of the 
manner in which the census had been taken, and 
the suddenness with which the election was or- 
dered, the untimely period chosen for it, and the 
brief notice to all concerned. I repeat, sir, that 
I do not presume to question the motives of Gov- 
ernor Reeder in this transaction; he has enough 
to answer, to explain, and (if possible?) to justify 
before God and his countrymen; and I will invent 
no charges against him. 

Strangely enough, however, the results of the 
enumeration in January, 1855, do not materially 
assist the Senator from Vermont in proving his 
assertion. These executive minutes show that 
the principal and almost entire excess of votes — 
about which we have heard so much — occurred 
in the seven contested districts. I have taken the 
trouble to compare the returns of the census with 
the returns of the election, district by district, 
precinct by precinct, and such is the result of all 
my examination. 

The census proves that, on the 15th of Janu- 
ary, 1855, there were two thousand nine hundred 
and five voters in the Territory. I do not stop to 
count the four hundred and eight aliens in addi- 
tion, each of whom could vote (by the Kansas 
act) as soon as he had taken the oath of alle- 



giance, and declared his intention to become a 
citizen of the United States. I stand upon the 
fact that two thousand nine hundred and five 
voters were admitted by the census. 

On the 30th of March, more than ten weeks 
afterwards, there were six thousand three hun- 
dred and thirty-one votes cast — showing an in- 
crease of three thousand fourhundrodand twenty- 
six beyond the census. But in those districts and 
grecincts alone, the returns of which Governor 
.eeder rejected, the increase amounted to two 
thousand two hundred and seventy-nine votes. 
Add to these, sir, the excess of two hundred and 
seventy in Bull Creek precinct — for that was vir- 
tually nullified, also, by Governor Recder's de- 
cision — and we have two thousand five hundred 
and forty-nine as the increase of votes in the con- 
tested districts. Take that sum from the total 
already mentioned, and there remain eight hun- 
dred and seventy-seven votes, as the increase in 
all the other (uncontested) districts. 

Again, sir, without changing the results of the 
election, we could reject one hundred and forty- 
three votes in Potawatomie precinct, against 
which some complaint seems to have been made; 
and this would leave an increase of only seven 
hundred and thirty-four votes. 

Thus far, I repeat, the results of the election in 
March, 1855, will not be disturbed — except as 
to three councilors and six representatives (the 
three representatives, for Leavenworth, having 
been chosen again at the May election) in the 
Territorial Legislature. And if we follow the 
counsel-s of the Senator from Vermont as to the 
tenth representative district — if we suppose the 
election to have been vacated, and some other 
candidate than Mr. Tebbs to have been elected — 
we must reject the excess of votes (one hundred 
and fifty-nine) in that district likewise. Thus, 
after the mighty achievement of unseating one 
representative — for that is all — we should find the 
legal voters of Kansas to have increased from 
January 15 until March 30, only five hundred and 
seventy-five ! 

And yet, Mr. President, the Senator from Mas- 
sachusetts [Mr. Sumner] who asks us to believe 
this implicitly, asks us to believe, oZso, that when 
the constitutional convention met at Topeka, in 
October, 1855, the Territory had grown from a 
population of eight thousand six hundred and 
one, \nale and female, old and young, citizens 
and aliens, white and black, freemen and slaves, 
to fifty or even sixty thousand inhabitants ! 

The Senator from Vermont complains that the 
two Houses of the Territorial Legislature, re- 
spectively, set aside the second election, held on 
the 22d of May, 1855, for councilors and rep- 
resentatives of the seven districts. 

This, sir, is true; and the question arises, there- 
upon, by what authority was that election or- 
dained .■* The question is not whether the election 
for councilors and representatives on the 30th 
of March should or should not be allowed to 
stemd; because I proceed, throughout, upon the 
idea that to the extent of those districts it was 
irregular and tumultuous. The question is, what 
authority had the Governor in this respect? 
What power had he to order a new election for 
any district? The right of every legislative as- 
sembly to decide upon the election of its own 
members — free of all interference by the execu- 



tive, or even the judicial department — is as old as 
the first Parliament that ever held a session. Let 
us consider, for one moment, the consequences 
of a different doctrine. Wherever a protest was 
filed, as these executive minutes show, Governor 
Reeder set aside the election — although, in one 
case, the protestants were the unsuccessful can- 
didates. No testimony was adduced; no trial was 
allowed; nor was any notice given. And so, it 
would seem, elections are to Tie vacated, mem- 
bers elect deprived of their offices, the right of 
representation taken from the people, and, prac- 
tically, the whole legislative power usurped by 
the Governor, as often as defeated candidates 
choose to protest against the result ! Granted, 
if you please, that illegal votes were cast, by the 
hundred, in these districts: it did not follow, by 
any means, that all the illegal votes were given 
for the successful candidates; or that, rejecting 
them, the successful candidates had not a clear 
mmority of legal votes. 

If, by the Kansas organic act. Congress had 
conferred upon the Governor (as some suggest) 
the power to set aside an election, and order a 
new one. Congress would have transgressed its 
own authority, and the provision would have 
been altogether void. What! Mr. President, arm 
one man with a right to unseat councilors and 
representatives; give certificates to whoever he 
may like; order new elections at his own pleasure ! 
What is this, I ask, but unlimited and despotic 
control of the government? It would not be a 
Legislature, sir, that was so constituted. It 
would be a mere cabal, pot appointed by the peo- 
ple, to register the Governor's own decrees. I 
grant that, by the twenty-second section of the 
organic law for Kansas Territory, the Gov- 
ernor was a returning officer — that it was his 
duty to receive and canvass the returns of the 
first election, and wherever the returns were reg- 
ular, upon their face, grant certificates to the 
parties thereby appearing to have been elected. 

If the returns were informal or irregular in any 
material respect, he might, perhaps, refuse the 
certificates of election. He was to declare the 
result from the official returns made to him, and 
not from protests, affidavits, or papers of that 
description. He was, to be sure, a judge of the 
fact; but the law prescribed what evidence, and 
what only, he should receive. 

In case of equal votes, in case of death, resig- 
nation or vacancy of that kind, the Governor 
could order a new election; but he could not 
make a vacancy, and then order it to be filled — 
whether by a new election, or otherwise. That 
power belonged, exclusively and inherently, to 
the Council as respected its members, and to the 
House as respected its members. " There isno 
other body known to the Constitution," said 
Chancellor Kent, " to which such a power might 
safely be trusted." (Commentaries, vol. 1, 
sec. 11.) 

Let us take the case, Mr. President, as I have 
supposed it. In seven districts, including three 
councilors and nine representatives, the electjpn 
was not only illegal, but the returns were informal, 
and even fatally defective. Governor Reeder de- 
clined to give certificates to the parties having the 
highest n'umber of votes. I do not complain of 
that; but he had no right to order a new election, 
either on the 22d of May, or at any other time. 



8 



There was a quorum of the members, in each 
House, duly elected: he had ascertained that — 
declared it — given certificates to the parties. Here, 
sir, he should have left the business; and upon 
the two Houses, when assembled, was devolved 
the task of examining the elections in all the dis- 
tricts — not upon the returns alone, but to the full 
extent and very matter of fact. I have no doubt, 
for these reasons, that the election ordered by 
Governor Reeder, on the 22d of May, was en- 
tirely unauthorized and void; and that it was the 
duty of each House, as soon as the Legislature 
had been organized, to examine the election of 
March 30, 1855, in all the contested districts, re- 
ject the illegal votes, count the legal ones, and 
decide which of the candidates were, in fact, 
chosen at that election; or, in case this could not 
be ascertained, to annul the election, and order a 
new one. Let us see, then, whether the two 
Houses did any more; whether, as alleged, they 
exceeded their right and their duty as a Legis- 
lature. On the first day of the session, July 2, 
the House of Representatives adopted thi« reso- 
lution: 

"That all persons who may desire to contest the seats of 
any persons now holding certificates of election as members 
of this House, may present their protests to the Committee 
oh Credentials, and that notice thereof shall be given to 
tlie persons holding such certificates." 

That every legislative body has the power, even 
without a contest, to inquire into the right of its 
members to their seats, is very clear, and affirmed 
by a multitude of precedents. Nowhere has it 
been exercised more frequently, perhaps, than 
by one or the other Hous«*of the Ohio Legislature. 

The Committee on Credentials proceeded, un- 
der this authority, to examine the case of each 
member, as well of those who assumed to have 
been elected on the 22d of May, as of those who 
had received certificates at the regular (March) 
election. What was the result.' Out of twenty- 
two members present — there were but twenty-six 
in all — the right of fifteen members was aflirmed 
by unanimous voice. As to the other seven cases, 
it would appear, four members of the committee 
(out of five) reported, ^' having heard and exam- 
ined all the evidence, touching the matter of inquiry 
before them," that the gentlemen who received the 
highest number of votes on the 30th of March 
were duly elected; or, in other words, counting 
the legal votes alone, upon the law and the testi- 
mony adduced, the illegal votes did not change or 
at all affect the result. 

And now, Mr. President, on what pretext did 
the fifth committee-man dissent? Did he deny 
the fact of election, by legal votes, on the 30ih of 
March.' No,sir,nothingof the kind. Itwasupon 
the pretext that Governor Reeder had, by law, 
the final, exclusive, and absolute right to decide 
the election of the members; and as he had set 
aside the choice made in seven districts on the 
30th of March, the House could inquire no fur- 
ther. I have shown that this proposition was 
not only devoid of authority in the statute, but 
contrary to all the law, written and unwritten, 
that ever existed. It only remains to show, there- 
fore, what the claim was, and here I find it, sir, 
in the protest of the rejected members: 

" We, the undersigned, members of the House of Repre- 
sentatives of Kansas Territory, believe the organic act or- 
ganizing the said Territory gives this House no power to oust 
any member from tliis House who has received a certificate 



from the Governor; that this House cannot go behind an 
election called by the Governor, and consider any claims 
based on a prior election. We would, therefore, protest 
against such a proceeding, and ask this protest to be spread 
upon the journal of this House." 

The proceedings in the Council, I understand, 
were of like character. 

One suggestion more. Whatever speech Got- 
ernor Reeder may have made at Easton,in Penn- 
sylvania, or elsewhere, prior to his removal from 
oflice, there is no occasion, when he was called 
to act as Governor, that he did not affirm the 
title of the Legislature, as a regularly-elected and 
constituted body, in all imaginable forms — by 
messages, and other appropriate recognitions — 
until the day (August 16) when he was removed. 
He denied the right of the two Houses to adjourn 
their session from Pawnee City, and he applied 
the veto power several times upon that ground 
alone. Certain it is, therefore — until they crossed 
the path of his expected fortune, until they re- 
moved from his city of Pawnee, on the western 
verge of the settlements, to the Shawnee Mis- 
sion — the members of the Legislature had no 
cause to suspect that he disputed their authority 
as rightfully-elected councilors and representa- 
tives. 

That the removal was perfectly legal, as well 
as expedient, I do not entertain a doubt; and for 
ourselves, at least, no Senator has attached any 
importance, thus far, to that topic, on which the 
Governor addressed the Territorial Legislature at 
such length, and which he made the first pretext 
of his disobedience to the territorial laws. You 
have on your table, Mr. President, the proceed- 
ings of a court-martial by which an officer of the 
Army was tried, and dismissed the service, for 
lending his influence — such, at all events, was 
the charge — to advance the speculation of Gov- 
ernor Reeder in the Pawnee military reserve. 
On his part, I am forced to conclude, the assertion 
of illegality at the March election — except in 
the seven contested districts — was a mere after- 
thought, and adopted only when his first excuse 
had proved to be unavailable. 

But, sir, even if we allow that the Council and 
the House erred, or acted improperly, in admit- 
ting three councilors and six representatives who 
had never been elected, what would it matter? 
The majority of each House had been rightfully 
chosen; and the decision, though erroneous, or 
otherwise improper, is final and conclusive in 
law. So it is, sir, with the judgment of courts, 
and I have known many of them which 1 deemed 
erroneous, and even some which I deemed par- 
tial. 

The Senator from Vermont suggested, in his 
speech, that the admission of the councilors and 
representatives for the seven districts robbed the 
Governor of his veto power. But that, sir, is a 
pure mistake. There were only three councilors, 
out of thirteen, in these districts — not one fourth 
of the whole number; and, even if they had voted 
to sustain a veto message, no different result 
would have been attained. But the Senator lays 
stress, chiefly, upon the House, inasmuch as 
there were twenty-six members in all, and nine 
of them (little more than one third) represented 
the contested districts. 

But, as the Senator from Illinois suggested, 
three of these nine were reelected, on the 22d 
of May, at Governor Reeder 's own election; and 



ihe question turns, really, upon the case of six 
memoers — less than one fourth of the whole 
number. And, besides, the functions of the 
House are at an end; and new members must be 
chosen in October. 

The veto messages were overruled, in each in- 
stance, by votes nearly or quite unanimous, and 
none of then* were upon questions of any import- 
ance except the removal of the Legislature to 
the Shawnee Mission. 

Whicliovcr way we turn, therefore, the results 
of the election in the seven contested districts 
made no difference ut all. More than three 
fourths of the members in each House were le- 
gally entitled to act and vote as members; and the 
statutes which they enacted ((.-xcept in so Air as 
those statutes may contravene the Constitution of 
the United States, or the ]irovisions of the Kansas 
act) are as valid and bindingasany laws evet*en- 
acted; and if there be one obnoxious to the objec- 
tion just excepted, in whole or in part, the courts 
are open, and all persons} aggrieved may there 
find redress. 

Mr. President, even if the case were not thus 
irrefutable at every point, no justitication could 
be made for the course pursued by Governor 
Reader and his associates at the convention of 
the Big Springs, and afterwards at Topeka. The 
two Houses which assembled atPawneeCity, and 
thence adjourned to the Shawnee^ Mission, con- 
stituted the Territorial Legislature of Kansas de 
facto, even if the election of March 30, 1855, had 
been irregular and illegal in every precinct. Not 
by an a|)peal to Sharpe's rifle, or any arbiter of 
that description, can questions of title or legal 
right be settled The acts of an othcer rfe facto, 
whether elected or not, are valid, and, as resjiects 
the public, are conclusive. Whilst I had the 
honor of occupying a scat in the Ohio Legisla- 
ture, six or seven years ago, thousands of the 
people believed — erroneously, sir, of course — 
that I had never been elected. Many of the stat- 
utes enacted at that session were passed by a 
majority of one vote, and the vote was my own. 
Judges and other officers were elected by the 
decision of my vote; but I never heard that any 
man disobeyed the judges or resisted the statutes, 
because he believed that I had no right to vote 
for the one or the other. 

I repeat, sir, that the acts of an officer de facto, 
whether executive, legislative, or judicial, arc not 
only valid, but, as respects the public, are con- 
clusive. This doctrine has been announced, time 
and again, by the courts of England and Amer- 
ica: it has been established, beyond all dispute, 
for more than two hundred years. (The State 
vs. Ailing, 1:2 Ohio Rep., IG. Scovil i'5. the city 
of Cleveland, 21 Ohio Rep., 126. The People 
vs. Hopson, 1 Denio,574. Greenleaf vs. Low, 4 
Denio, 170.) 

1 have ah'eady noticed the suggestion, that 
certain statutes enacted by the Territorial Legis- 
lature are intolerable, anci that Congress should 
interpose, in some manner, to prevent the oppres- 
sion thereby threatened. The preamble of the 
resolutions, adopted by the Ohio Legislature, 
affirms that "such restrictions" have been im- 
posed *' upon the right of suffrage, at future elec-. 
tions, as will exclude the opponents of slavery 
from the polls." If the " opponents of slavery 
are those only who disregard the obligations of 



the Constitution of the United States — who live 
under our beneficent form of Government, and 
enjoy all its advantages, but refuse to acknowl- 
edge its authority, or submit to its laws — then, 
perhaps, they are excluded from the right of 
suffrage in Kansas, as they might well be ex- 
cluded everywhere. Whatarethe "restrictions" 
imposed? That the voter shall, if challenged, 
take an oath to support the Kansas territorial 
act and the two acts of Congress for the rede- 
livery of fugitive slaves. Where is the injustice 
of this provision? The organic act is the con- 
stitution of the Territory, and to be respected, 
during the territorial condition, as the constitu- 
tion of a State is respected by its citizens. What 
is more common, sir, than to exact from the voter, 
when challenged, an oath to support the consti- 
tution of his State? This does not oblige him to 
approve the constitution as a measure, but only 
to promise that, while it continues in force as 
the constitution, he will obey it, as all patriotic, 
well-behaved, peaceable citizens do. The Kansas 
statute has precisely this extent. No man is re- 
quired to approve the principles of the organic 
act, or of the acts relating to fugitive slaves, but 
merely to swear that he will not violate those 
laws— promulgated, as they have been, by com- 
petent authority — so long as they continue in 
force. I can discover no reasonable objection to 
this. The organic act, I have said, is the terri- 
torial constitution: it declares (section 28) that 
the acts of February 12, 1793, and September 
18, 1850, for the redelivery of fugitive slaves, 
shall extend to the Territory of Kansas, and 
thus gives them all the 'effect of a fundamental 
provision. Those who cannot live under such a 
code of laws, therefore, need not become inhabit- 
ants of the Territory, or, if in it, need not remain 
there. They have no honest claim to vote — no 
more than an inhabitant of Ohio, whose con- 
science is so tender or so morbid (whichever you 
please) that he will not swear to support the con- 
stitution of the State. 

But, sir, the case of Kansas in this particular 
docs not stand alone. The ordinance of July 
13, 1787, required of the Governor, judges, and 
other officers, an oath oraffirmationof " fidelity," 
as well as the ordinary official oath or affirma- 
tion, and that contained a provision, necessarily, 
that they would maintain the six articles of 
compact, Th(j sixth and last article stipulated, 
in express terms, that all fugitive slaves should 
be redelivered to the masters from wliom they 
had escaped. 

Another criticism has been made, sometimes, 
upon this statute, namely: that it does not require 
a qualification of residence, but allows any man 
to vote, whether resident or non-resident, on pay- 
ing a tax of one dollar. This allegation is en- 
tirely erroneous. The statute defines the qualifi- 
cation of a voter in clear and explicit language: 

" Every free while male citizen of the United States, 
and every free male Indian who is made a citizen by treaty 
or otherwise, and over the age of twenty-one years, who 
shall be an inhabitant of this Territory, and of the county 
or district in which he otters to vote, and shall have paid a 
territorial tax, shall be a qualified elector for all elective 
officers." 

The voter, you observe, must be an inhabitant; 
and, if so, he cannot be a non-resident. The two 
descriptions are perfectly incompatible. To be 
sure, no previous term of residence is prescribed; 



10 



but that has not been usual in the Territories, or 
even the new States, where the object is to invite 
immigration by all reasonable inducements. No 
such term of residence was prescribed in the 
ordinance of July 13, 1787, for those who had 
been citizens of any of the Slates. 

As to the stipulation that each voter should 
have paid a territorial tax — against which some 
objections are urged — it is only what the first 
constitutic)n of Ohio required. Th.e same stipula- 
tion has been made, also, in most of the other 
States; and,atthisvery session, the Senate passed 
a bill for the District of Columbia, in which it 
niay be found — and without any olijcction. 

It is true, sir, that one of these territorial taxes 
was a poll-tax of one dollar; but the voter need 
not have paid that if he had paid any other tax 
assessed for territorial purposes. Nor, if any 
man had paid it, would that render him " an in- 
habitant" of tlie Territory, or authorize him to 
vote. I am not a friend of poll-taxes; I have 
always admired thai provision in the first consti- 
tution of Ohio by which poll-taxes were prohib- 
ited for Stale or county purposes. But such 
taxes are levied in other Slates, and, among 
others, in the State of Massachusetts. Why, 
then, all this tirade against them in the Territory 
of Kansas ? 

The Ohio resolutions affirm, also, that the 
Legislature of Kansas appointed "its own crea- 
tures" to all the territorial offices — by which ele- 
gant phraseology is meant, I suppose, that the 
officers were chosen by the Legislature. This, 
to a very limited extent, is true, but, in the main, 
is a gross mistake. The r»nly officers to be chosen 
by the Legislature, permanently, are the auditor 
and treasurer of the Territory, and district at- 
torneys; and these are chosen for periods of four 
years. The law of Kansas, in this particular, 
' follows the first constitution of Ohio — a constitu- 
tion under which, for almost forty-nine years, the 
State enjoyed a degree of prosperity second to 
that of no community, either in ancient or mod- 
ern times. That constitution provided for the 
election of the secretary of State, treasurer of 
State, auditor of Slate, judges of the supreme 
and common pleas courts, and many other 
officers, by the Legislature, and for periods of 
service varying from three to seven years. 

The laws of Kansas declare, also, that until 
the election of October, 1857, a probate judge, 
two commissioners, and a sheriff, ki each counlj^ 
shall be chosen by the Legislature; but then, and 
always thereafter, those officers are to be chosen 
by the people. The necessity for their election 
by the Legislature, temporarily, is quite plain, 
inasmuch as by the organic law (section 25) the 
commissions of all officers appointtd by the Gov- 
ernor expired at the adjourninent of the Legis- 
lature. Without such an election, therefore, the 
Territory would have been bereft of subordinate 
and local officers. The probate judge and the 
commissioners together appoint justices of the 
peace, constables, and county officers. In this 
reaped, also, the laws of Kansas pursue the first 
constitution and early statutes of Ohio. By the 
constitution, the Legislature elected three asso- 
ciate judges in each county; and these judges, 
for a long while, appointed the clerk, attorney, 
and other county officers. The sheriff and the 
coroner alone were elected by the people. Of 



course, sir, the members of the Ohio Legislature 
could not have been ignorant of the history of 
their own State; but they were so anxious to 
remove a mote from the eye of their neighbor, 
as to have forgotten the good advice of the Scrip- 
tures. 

It has been objected, also, that most of the 
laws were copied, without alteration, from the 
revised statutes of Missouri. I see nothing 
objectionable in this. The Legislature acted 
wisely, indeed, when it availed itself of the care 
and learning with which the statutes of Missouri 
had been compiled, remodeled, and consolidated 
into a regular code. But, sir, those who make 
the objection should recollect that, by their favor- 
ite ordinance of July 13, 1787, the Governor and 
judges were forbidden to adopt any law for the 
Northwestern Territory , unless it had been copied 
from the statute-book of some one of the States. 

The Senator from Vermont, however, com- 
plains chiefly of the eleventh and twelfth sections 
of an act for the definition and punishment of 
certain offenses. The eleventh section is in these 
words: 

" If any person print, write, introduce into, publish, or cir- 
culate, or ciiuse to be brou;^ht into, printed, \\ ritten, pub- 
lished, or circulated, or shall knowiii;;ly aid or assist in 
bringing into, printing, publishing, or circulniing within this 
Territory, any book, paper, pamphlet, magazine, handbill, 
or circular, containing any statements, arguments, opin- 
ions, sentiments, floctrines, advice, or innuendo, calculated 
to promote a disorderly, dangerous, or rebellions disafl'ec- 
tion among the slaves in this Territory, or to induce such ^ 
slaves to escape from the service of their masters or to re- 
sist their authority, he shall be guilty of a'felony, and be 
punished by imprisonment and hard labor for a term not 
less than five years." 

The purport of this enactment is not (as the 
Senator imagines) to punish a man for declaring, 
in print or otherwise, that slavery is an injurious 
or improper institution, but for attempting to pro- 
mote a servile insurrection; or, in the very words 
of the act, "promote a disorderly, dangerous, 
or rebellious disaffection among the slaves of the 
Territory," or "induce such slaves to escape 
from the service of their masters." Sir, I regret 
the necessity for such legislat'ion; but, wherever 
slavery exists as an institution, laws of that char- 
acter must be adopted. Governor Recdcr assured 
the Legislature of its power, in this respect, by 
his inaugural message. "A Territorial Legisla- 
ture," he said, " may undoubtedly act upon the 
question to a limited and partial extent, and may 
temporarily prohibit, tolerate, or regulate slavery 
in the Territory, and in an absolute or modified 
form, with all the force and effect of any other 
legislative act, binding until repealed by the same 
power that enacted it." 

Now, if the Legislature had a right to " tolerate 
or reguhite slavery" in tlie Territory, it had the 
right to provide — and was under a solemn obli- 
gation to provide — against insurrection and re- 
bellion among the slaves; and any man, anywhere 
in the United States, who publishes or circulates 
a. " book, paper, pamphlet, magazine, handbill, 
or circular," inciting other men, black or white, 
to overthrow the established Government by 
force, to disturb the peace of the community, to 
resist the execution of the laws — no matter with 
what excuse he fortifies such conduct — deserves 
to be punished. His offense, at common law, is 
that of publishing a seditious libel — and punish- 



11 



able with more severity, far more, than is pre- 
scribed ill the Kansas statute. 

To call un act which holds men accountable for 
publications calculated and intended to excite a 
servile insurrection, with all its horrors of blood- 
shed and rapine, an assault on the liberty of speech 
or of the press, is a mere trick of language, and, 
if generally admitted, would end in the destruc- 
tion of those two inestimable rights. The true 
doctrine is expressed, sir, in all our State con- 
stitutions, namely, that no citizen shall be subject 
to censorship beforehand, but shall be responsible 
for an "abuse" of liis privilege, detrimental to 
the public or individuals, by indictment, or pri- 
vate action. The Kansas statute, I repeat, docs 
not forbid any one to publish a fair discussion of 
slavery, its objectionable features, its evil conse- 
quences — not at all. It only punishes the offense 
of stimulating slaves to rebellion, or to run away 
from the service of their masters, and to tliat ex- 
tent, in my opinion, it is defensible. No well- 
behaved citizen need ever stand in fear of its pen- 
alties. 

The twelfth scctioTi is of a character quite dif- 
ferent; 

" If aay free person, by speaking or by writing, assert or 
maintain that persons have not the ris;ht to liold slaves in 
this Territory, or sliall introduce into this Territory, print, 
jHiblisii, write, circulate, or cause to be introduced into this 
Territory, written, primed, pubUshed, or circulated in this 
Territory, any book, paper, majjanine, paniptijet, or<tireular, 
containin<; any denial of the right ofpersoiis to liold slaves 
in tliis Territory, such person sliall be deemed guilty of fel- 
ony, and punished by imprisonmentathard laOor for a term 
of not less than two years."- 

This, perhaps, does not embrace a publication 
discussing the characterof slavery as an institu- 
tion, or even the question of its establishment; it 
relates to a denial of the authority of the Legis- 
faturc in the premises. So it was interpreted by 
the Governor, the judges, the attorney, the mar- 
shal, and many of the councilors and represent- 
atives, in the address published at Leavenworth, 
November 14, 1855: 

" There is nothing in the act itself, as has been charged, to 
present a free discussion of the subject of slavery, its 
bearing on society, its morality or expediency, or whether 
it would be politic or impolitic to make this a slave State, 
can be discussed here as freely as in any State in this Union, 
without infringing any of the provisions of the law. 'I'o 
deny the right of a person to hold slaves under the law in 
tins Territory, is made penal but, beyond this, there is no 
restriction to the discussion of the slavery question in any 
aspect in which it is capable of being considered." 

Neither this section, nor the eleventh, I under- 
stand, has ever been executed — nor, indeed, has 
their execution been attempted. In the peculiar 
circumstances of the Territory, however, I think 
the twelfth section was unjust; and, as it might be 
abused by a corrupt magistrate, I wish to sec it 
abrogated. Such legislation has become too 
fashionable of late years, whenever men are em- 
bittered against their opponents. 

But, sir, in respect to penal statutes, the pres- 
ent Legislature of Ohio is not above critici-sm. 
One of the Houses has passed a bill — which the 
other is expected to pass, likewise, at the ad- 
journed sesftion — whereby the sale, or even the 
gift, of a glass of wine, beer, al^, or cider, in any 
circumstances, is made punishable by a fine for 
the first transgression, and by imprisonment, as 
well cis fine, in the second. Yes, sir, those who 
complain of severity in Kansas legislation have 
actually declared that, if a man should find his 



neighbor by the roadside, weary, sick, or wound- 
ed, and, either for the sake of love or money, 

should relieve that neighbor with oil and wine 

as the good Samaritan did — he ought to be hauled 
before some justice of the peace, and summarily 
as well as severely punished. And, I suppose, 
if our Saviour were to come again upon earth, and 
repeat the miracle which He performed in Cana 
of Galilee, instead of being overwhelmed with 
gratitude for so beneficent an exhibition of the 
Divine power, they would condemn Him to the 
pillory or the stocks. 

Indeed, Mr. President, the vagaries of legisla- 
tion — and, especially, of penal statutes — are so 
strange, and even so ludicrous, that one should 
hardly treat them with an argument. The wisest 
of statesmen have not been exempt from such 
follies. In the model code proposed by Jefferson, 
for the definition and punishment of crimes, I 
find this section: 

" .\ll attempts to delude the people, or to abuse their un- 
derstanding by exereise of the pretended arts of witchcraft, 
conjuration, enchantment, or sorcery, or by pretended 
prophecies, shall he punished by tlucking and whipping, at 
the discretion of a jury, not exceeding fifteen stripes." 

Under such a law, I fear, several Senators on 
the other side (my colleague included) would be 
in danger — to the extent, probably, of the fifteen 
stripes — for their " pretended" prophecies, often 
repeated, as to the results of the next presidential 
election. 

Mr, President, it is due to myself, as well as to 
others, that I should confess how widely I mis- 
apprehended this part of the subject at the com- 
mencement of our session. I had read in the 
newspapers, and certainly believed, that none 
were admitted to the right of suffrage in future 
elections except those who would take an oath 
to maintain the entire body of statutes adopted 
by the Territorial Legislature; and it is quite prob- 
able, sir, that, in conversation and correspond- 
ence, frequently, I have declared such an enact- 
ment to be unjust in principle, and indefensible 
anywhere. 

The venerable Senator from Michigan [Mr. 
Cass] suggested, in his able and thoroughly-pa- 
triotic speech, that it would become us — the sup- 
porters of the Nebraska bill — to adopt some fair 
and moderate course in reference to these territo- 
rial statutes. I always listen to his counsels with 
pleasure; but never, sir, did I listen with more 
pleasure, with more gratitude, than on that occa- 
sion. I believe it would be wise, prudent, and, 
upon the whole, equitable, calculated to allay, in 
a great measure, the excitement which now pre- 
vails in some of the northern States, and satis- 
factory, I hope, to well-disposed citizens every- 
where, if Congress should undo the restrictions 
and tests contained in these acts of the Territo- 
rial Legislature. To be sure, as I have shown, 
they are not without the color of precedent-, but 
such precedents, after all, are better avoided than 
imitated. 

The territorial statutes, however objectionable, 
did not provoke the insurrectionary movement in 
Kansas. It began ere they had been enacted-, and 
it has continued without the least regard to their 
operation or effect. That is demonstrated clearly 
in the report submitted by the Senator from Illi- 
nois, [Mr. Douglas,] as chairman of the Com- 
mittee on Territories. 



12 



Whence, then, have arisen these discords and I 
troubles? From the unauthorized interruption of 
the citizens of Missouri, in great part, as 1 believe 
— but deeper than all that, as the real and respons- 
ible cause, from the establishment of an organ- 
ized company, incorporated by the Legislature 
of Massachusetts, to invade the Territory and 
lake possession of it, to render ineffectual the com- 
petition of individuals, to forestall the settlement 
of that question which the organic act had left to 
the calm, deliberate, and peaceable decision of 
tlie people. The operations of the company were 
not as extensive, nor as imjiortant, perhaps, as 
they have sometimes been represented; but they 
have led, nevertheless, to all the controversies, 
all the serious quarrels, all the bloodshed, with 
which Kansas has been cursed to this hour. They 
have separated into hostile factions, arrayed with 
arms against each other, a body of settlers who 
should have devoted all their energies to the main- 
tenance of peace and the foundation of a new and 
great Commonwealth. Mycolleague has several 
times asserted, with great excitement of manner, 
that citizens of the Free-State party (so called) 
have been "murdered in cold blood" by their 
antagonists — but only such excitement could have 
prevented his detecting the absurdity of this as- 
sertion. Men of both parties have been killed, 
houses burned, and other property injured or 
destroyed. But there has been no " cold blood" 
in all this: it has been hot blood on both sides — 
blood heated by a thousand incentives to strife. 
The inhabitants were (and, I fear, still are) en- 
raged at each other; and have sacrificed all that 
ia dear to both parties, thus far, at the instance 
and for the pleasure of political aspirants. It is 
not so much the question, in my judgment, 
whether Kansas shall be a slaveholdnig or a non- 
slaveholding State — as whether the men of one 
faction, or of the other, shall be exalted to power. 

I do not intend to speak of the Massachusetts 
Emigrant Aid company at length. The Senator 
from Alabama [Mr. Clay] has exposed its pur- 
poses and its conduct with such accuracy of 
detail — such clearness of perception — that little is 
left for the rest of us. I wish to notice, how- 
ever, a suggestion to which the Senators from 
New York and Alassachusetts attached so much 
importance. It is, that the corporation violated 
no law; and as for comity between the States, 
we have no rule^ upon that subject, except those 
which are expressed in the Federal Constitution. 
Sir, if Senators stand upon this doctrine, where 
(let me ask them) did the State of Massachusetts 
find authority to create a corporation whose busi- 
ness was to be conducted without her own limits, 
and chiefly within the limits of another govern- 
ment? She had no authority for that; and,, if 
we should apply a strict rule to her actions, the 
emigrant aid company would be condemned at 
once. It could not make any contract or manage 
any enterprise, beyond her own limits; and, far 
less, hold property in Kansas. It is upon the 
rule of comity alone that the corporations of one 
State are allowed to transact business, or even 
bring suits, in anotlier State — a rule of comity, 
moreover, which is not expressed in the Federal 
Constitution. Let us hear what the Supreme 
Court has said : 

" It is very true that a corporation can have no legal 
eiiiitence out of ibe l)Oundari«ij of tlie sovereignty by wbicli 



it is created. It exists only in contemplation of law, and 
by force of the law ; and whore that law ceases to operate, 
and is no longer oblij;alory, the corporation can have no 
existence. It must dwell in the place of its creation, and 
cannot migrate to another sovereignly." — The Bank of 
.Augusta, vs. Earle, 13 Peters, 588. 

I counsel those two Senators, therefore, to look 
beyond the letter of the Constitution in this 
respect, and to govern themselves rather by the 
wholesome idea on which our Federal Govern- 
ment is founded — that of equality between the 
States, and non-intervention of one State with the 
domestic affairs of another. Upon this idea, we 
know the Kansas act intended to establish, for- 
ever, the policy of our territorial governments. 
In the true sense of the question, then, this Mas- 
sachusetts corporation did violate the law — many- 
laws — in a most willful and officious manner. It 
violated the law of comity between the States; it 
violated the principles of the Kansas territorial 
act; it vif>lated the faith pledged in our Federal 
Constitution. In another respect, also, the cor- 
poration has greatly offended. How, except by a 
sheer perversion of our statutes, did the company 
acquire title to section after section of the public 
lands — in exclusion of individual settlers — and 
with a view (as its circular declares) to sell them 
hereafter at an advanced price, and divide the 
profits among its Massachusetts stockholders? 
Was such the design of your preemption laws ? 
No, sir! It is a violation of those laws — a bold 
and reckless attempt to seize the best portions of 
the public domain, in fraud of the rights of actual 
settlers, for the conjoint purposes of private profit 
and sectional agitation. I never heard — I cannot 
even imagine — a more palpable outrage, as well 
against the laws of the United States, as against 
the peaceof the Territory, and the rights of indi- 
vidual citizens everywhere, than this emigrant aid 
contrivance. It has been lauded by its friends, 
here and elsewhere; but I believe it to be a gigantic 
engine of mischief and wickedness. It has filled 
the Territory with confusion and bloodshed; has 
exasperated the two sections of the Union against 
each other; has led to those horrid scenes of 
ribaldry at which all Pandemonium rejoiced — 
scenes where 

" The Priest 
Turns Atheist, as did Eli's sons, who filled 
With lust and violence the house of God." 

In Massachusetts, to be sure, it is a moneyed 
corporation, and it appears, even in Kansas, only 
as a landed proprietor. But, sir, beneath these 
garbs we find a secret, oath-bound political and 
military organization, with its "grand general" 
at Lawrence; its " grand vice general" at Topeka; 
its " grand paymaster" at Leavenworth; its colo- 
nels, officers, sentinels, soldiers, and recruits, in 
every neighborhood. 

I have said, sir, that Nebraska and Kansas 
were established by one law. Nebraska has had 
peace — Kansas only confusion. Toward Kansas 
the emigrant aid company directed its operations — 
Nebraska it left alone. Herein consists the whole 
difference ! 

Thus far, Mr. President, of the Questions di- 
rectly before the'Senate. But the resolutions of 
the Ohio Legislature embrace other and kindred 
topics, on which many Senators have spoken &t 
length. I sheill be pardoned, I trust, for a similar 
digression. 

Some of those Senators declare that Congresjr 



13 



has the right, under the Constitution, to prohibit 
slavery in tlie Territories; that, by the Kansas 
act of May 30, 1854, Congress abdicated its 
■autliority in an improper manner; and that the 
effectual method of obviating all difficulties (if 
we reject the State constitution now proposed) 
would be to restore the prohibition contained in 
the act of March 6, 1820, section eight. The 
resolutions of the Ohio Legislature assert, more- 
over, tliat those who framed our Federal Govern- 
ernment designed to prohibit the institution of 
African slavery in all the Territories, and, there- 
by, the creation of new slaveholding States. 

The Senators from Vermont and Iowa do not 
claim 8o much. They claim, however, that the 
intention was to tolerate slavery wherever it then 
existed in the Territories, and prevent its estab- 
Jishment wlierevor it did not exist. 

I deny all these propositions. I believe that 
Congress has no authority over the citizens of 
the United Slates inhabiting the Territories, ex- 
cept to provide for the protection of their persons 
and property against violence, or other wrongful 
aggressions, until such time as they are able, by 
the adoption of a State government, to protect 
themselves. I believe that Congress has no legis- 
lative power (properly so called) over the Terri- 
tories, and its whole authority is that of a landed 
proprietor, and a. trustee of sovereignty for the 
inhabitants. Beyond this limit — ijeyonil the right 
to control the use and disposition of the public 
domain, and so far abridge the political action of 
the inhabitants as to preserve their allegiauce to 
the Federal Government, and ultimately admit 
them as a State into the Union — beyond this limit, 
I say, all exertions of power by Congress amount 
merely to usurpation. 

It follows, Mr. President, that the fathers of the 
republic did not, in my opinion, profiose cither 
10 restrain or encourage, establish or abolish, the 
institution of slavery in the Territories, or any- 
where else. 

The Senator from Vermont has said, with de- 
liberate emphasi.s, that the Constitution does not 
recognize property in men. I might answer, with 
equal emphasis, that it nowhere defines, or even 
indicates, what shall or what shall not be prop- 
erty, in the United States, except where it speaks 
of the public domain, forts, arsenals, and the 
like. That was not the office of the Constitution. 
It established a government which, as respects 
our own people, is purely federal in character, 
and has no concern with the rights of property, 
except as they are defined by the laws of the 
Several States. And, sir, it so happens that the 
only species of property to which a special pro- 
tection was vouchsafed in the Constitution, is 
the right of one man to the "service or labor " 
of another. Whether this be property, in strict- 
ness of acceptation, I care not to decide. It is 
a right founded upon the laws of a State, and 
guarantied by the express compact of all the 
States. 

Both these Senators have been challenged, as 
others of their sect have been challenged, in times 
past, to specify the language of the Constitution 
from which they derive the vast congressional 
power now claimed; but no language is adduced, 
after all, except that of article fourth, and section 
third: 

" The Congress shall have power to dispose of, and make 



all needful rules and regulations respecting, the territory 
or otiicr property belonging to the United States." 

This section does not confer any legislative 
power, nor does it even speak of any subject 
over which legislative power can be exercised. 
It merely declares that Congress, as an agent, 
shall exercise the proprietorship of the lands and 
other property of the Union. For, Mr. Presi- 
dent, let us observe: 

1. The power of disposition is quite as large 
and as absolute as that of regulation; and if Con- 
gress could legislate, in a political .sense, for the 
inhabitants of a Territory, it could, in exercise 
of the power of disposition, transfer their alle- 
giance to some foreign Government, or even to 
an individual, by a mere alienation of title to the 
land. 

2. The language is the *' territory," " belong- 
ing to the United States," and not, as often mie- 

?uoted, tlie territories (plural) of tke United State$. 
n other words, the section refers to the public 
lands, as such, and not in any political sense — 
the public lands within the limits of a State, as 
well as those without. And hence the section 
proceeds in the alternative, "the territory or 
olker property belonging to the United States." 

The Senator from Iowa calls for the judicial 
decisions upon this point, and I shall endeavor 
now to satisfy him. 

In the case of Gratiot and others, 14 Peters, 
537, the Supreme Court said: 

"The term 'territory,' as here used, is merely descriptive 
of one kind of properly, and 'is eriuivalent to the word 
lands." 

In the case of Pollard's Lessee us Hagan, 3 
Howard, 221, the court said: 

" We think a proper examination of this subject will 
show that tin; United States never held any municipal sov- 
ereijfnty, jurisdiction, or rialit of soil in and to the territory 
of which Alabama, or any of tlienew States, was formed, 
except for temporary purposes." 

These purposes the court defines to be an exe- 
cution of " the trusts" created by the deeds or 
treaties of cession — namely, the trusts of provid- 
ing for the organization of a new State, and its 
admission into the Union. 

The Senator. from Vermont has ridiculed as 
very absurd that provision of the organic act 
which extends the Constitution of the United 
States over the Territory of Kansas, and asked, 
witli an air of trium|)h, "Who ever supposed that 
the Constitution did not, ex propria vigore, prevail 
in all the Territories?" I might answer, as the 
Senator from Illinois has answered, that Daniel 
Webster supposed so, and made an elaborate 
argument in this Chamber to prove it; but I have 
another authority to the same effect, namely, the 
Supreme Court of the United Slates. In the case 
cited by the Senator himself — the facts of which, 
by the way, he misapprehended altogether — the 
case of the American Insurance Company vs. 
Canter, (1 Peters, 511,) it was decided that the 
courts of a Territory are not conUitutional courts, 
and, necessarily, that the Constitution does not 
extend to the Territories by the force of its own 
provisions. 

The Constitution is for the S<atcsalone; it is the 
Constitution of the United States, and not of the 
Territories, or even of the States and the Terri- 
tories together. Its authors never dreamed of a 
territorial government to be created by Congress, 
and, of course, made no provision for any such 



14 



government. At the time the Constitution was 
signed, in September, 1787, every acre of land 
which had (hen been ceded by tiie States, of which 
they had the least knowledge or conception, was 
embraced by the ordinance of the Continental 
Congress, adopted in July of that year. This 
ord-inance purported, by its own terms, to be an 
irrevocable compact between the citizens of the 
original States and those who should inhabit the 
territory in all future time. I acknowledge, Mr. 
President, that, under the power to make treaties, 
the Federal Government can acquire territory; 
as, also, that the power of conquest is incident to 
the power of levying war. But the framers of 
the Constitution did not dream that an opportu- 
nity for annexation or conquest would ever pre- 
sent itself; they had no conception of the import- 
ance of the western country, and far less of our 
empire beyond the Mississippi river and upon the 
Pacific coast. 

The region west of the Mississippi, as well as 
that bordering upon the Mexican gulf, belonged 
to Spain, then the most splendid of the European 
monarchies, and one which has always pursued 
the policy of sacrificing the happiness of her peo- 
ple at home in order to maintain the integrity of 
her foreign dominion. The framers of our Con- 
stitution did not contemplate an extension of 
the Union in any direction. Canada had a stand- 
ing invitation, for )iine years, in the Articles of 
Confederation; and as she did not accept it during 
that period, all hopes of her accession were aban- 
doned. I have not said, sir, that the framers of 
the Constitution were opposed to an extension of 
our boundaries. They saw no probability of it, 
and therefore made no provision for Territories 
thus to be acquired. Let us not wonder, conse- 
quently, at the views entertained by Mr. Jefier- 
8on at the time of the Louisiana purchase, and 
his suggestion of such an amendment to the Con- 
stitution as would ailirm that exercise of power. 
Unhappily, sir, the advice was not adopted; for 
in his time, before abolitionism had arisen to dis- 
turb the peace of the Union, some fair, wise, and 
just provision could have been made upon this 
subject in the Constitution. 

As apolitical government had been established 
for all the territory supposed to belong to the 
United States at that time, under the ordinance of 
July, 1787, the constitutional Convention deemed 
it only expedient to provide for the disposition 
and management of the public lands as the prop- 
erty of the Union. And hence the clause to 
"which I have referred not merely fails to confer 
legislative or political dominion over the Terri- 
tories, but a proposition of that character was en- 
tirely rejected. Thus, on the 18th of August, 
1787, it was moved, in the convention, that Con- 
gress should have power — 

" To dispose of the unappropriated lands of the United 
States ; 

" To Uislilule temporary governments for the new States 
arising tlicrein." — Journal of the Convention, p. 12t>0. 

The first proposition was adopted, and is ex- 
pressed, substantially, in the Constitution; the 
second was rejected. 

But, sir, the Constitution affords us additional 
evidence. Its framrrs understood the wide dis- 
tinction between a clause authorizing Congress 
to make " rules and regulations" for the disposi- 
tion or management of the public lands, and a 



clause conferring upon Congress legislative or 
political dominion. In the eighth section of the 
first article, among the powers delegated, we 
find: 

" To exercise exclusive le;;islation in all cases whatso- 
ever over sucli district (not execciiiiiK ten miles square) as 
may, by cession of particular Stall's, and the acceptance of 
Congress, become the seat of the Government of the United 
States." 

This power was limited, expressly, to a dis- 
trict not exceeding ten miles square — so jealous 
were our fathers of the authority of the Federal 
Government aiid of the exercise of a power thus 
arbitrary in cliaractcr. Yet, after all, a power 
more despotic and irresponsible has been deduced 
— or, rather, its deduction has been attempted — 
from language entirely inappropriate, and over a 
region greater than the area of the original 
States. 

Whence, then, is derived the authorityof -Con- 
gress over the Territories? J answer, INlr. Pres- 
ident, that it is a trin^t arising from, and expressed 
in, all the deeds of cession from the States, and 
the treaties with France, Spain, and Mexico, by 
which we have acquired new domain — a trust for 
our citizens who may inhabit those Territories, 
and to be exercised snli;ly with a view to their 
becoming one of the; political communities known 
as States in our Union. And, therefore, what- 
ever restriction or regulation of a legislative char- 
acter would prevent the State, when formed, from 
standing on terms of equality with the original 
thirto<;n States, is improper, unjust, and tyran- 
nical, whilst the territorial condition continues. 
It may lie, sir, that no hand is powerful enough 
to stay the exercise of congressional legislation; 
and in that sense, perhaps, the authority of Con- 
gress would seem to be unlimited. But even un- 
limited authority docs not confer the sanction of 
ri2;ht ujion an arl)itrary regulation. I agree with 
Edmund Burke, that " arbitrary power is a thing 
which no man can give." 

A regulation of the domestic and local affairs 
of a community — whether you call it a State, a 
Territory, or by what title soever — in opposition 
to, or disregard of, the wishes of the inhabitants 
— restraining them from the advantages enjoyed 
by their fellow-citizens in other States or Terri- 
tories, for the development of their material re- 
sources, the forms of labor which are best suited 
to their soil, climate, and circumstances — such a 
regulation, in my judgment, is a very gross abuse 
of power wherever the power does exist, and a 
tyrannical assumption wherever it does not. 
And when we consider that the whole scope of 
a territorial government is to provide for the fu- 
ture admission of the community over which it 
exists into the Union as a State, the proposition 
becomes too clear for any dispute — except from 
those who love to cavil upon trifling distinctions, 
or rather upon distinctions without any difference 
— that whatever n^striction cannot be imposed on 
the State after admission, cannot be imposed at 
that time; and whatever cannot be imposed as a 
requisite to admission, cannot, in good faith, be 
imposed during the territorial form of govern- 
ment. It would be a distinct breach of the 
"trusts" upon which alone Congress exercises 
dominion over the Territories — tlie trusts, name- 
ly, of providing for the erection of new States, 
and their admission into the Union. For, as was 



15 



said by the Suprome Court in the case of Pollard's 
Lessee vs. Hagan, already cited — 

" Whenever the United States sliall have fully exeeutcd 
those trusts, the inuniei|);\l siivereignty of the new States 
will be complete tlirousliout tliinr respeetive hnnlers, and 
they and tli(! original States will he upon an equal foothig 
in all respects whatever." — '3 Howard, '2-Jl. 

To forestall the exercise of State sovercig:nty, 
upon a quistion which is domestic and local in its 
character, would be not only unjust and unfair, 
but fraudulent. 

In apology for such an abuse of power, never- 
theless, the Senator from New Vork declared to 
us, in set phrase, that slavery was and ever had 
been a mere " outlaw" in our political system. 
This proposition, Mr. President, is wholly un- 
tenaijle. So far from being an outlaw, as claimed, 
that is the only municipal institution of the States 
(as I have siiown) over which the Constitution 
extends an express protection; and I may add, 
that it has existed at some period or other in every 
nation, and with every people, of whose history 
we have the least record. Nor can there be any 
doubt that slavery is recognized and protected to 
the present hour by the law of nations, upon the 
high seas, and in all places where it has not been 
excluded under the operation of a local law. The 
Senator from Louisiana [Mr. Benjamin] cited the 
Institutes of Justinian some wciks since, to the 
effect that slavery is a creature of the law of na- 
tions;* and thereupon the Senator from New York 
attempted to ridicule the citation by informing us 
that Justinian was a Roman emperor — and per- 
haps a tyrant — who lived many hundreds of years 
ago. But, sir, the Senator must know that Jus- 
tinian did not invent (and probably never read) 
the Institutes which bear his name; that they were 
composed by the most learned and eminent men 
of the empire, and that to-day, they furnish law 
to more than two thirds of the civilized world. 
The very paragraph cited by the Senator from 
Louisiana is reiterated by Domat, the great ex- 
pounder of the civil code in modern times, as well 
as by numerous other acknowledged authorities. 
Unquestionably, therefore, it is the law, as under- 
stood in continental Europe, in Mexico, in Central 
and South America. The courts of England teach 
the same doctrine. In the case of a French vessel, 
Le Louis, engaged in the African slave trade, 
which had been seized by an English cruiser, and 
brought into port for condemnation. Sir William 
Scott (than whom there is no more solid author- 
ity on questions of international law) declared 
even the traffic in slaves upon the high seas to be 
one which no nation could render illegitimate to 
the citizens or subjects of another. That was in 
the High Court of Admiralty, December 15, 1817. 
(2 Dodson's Adm. Reports, 238.) At Hilary 
term, 1820, the Court of King's Bench — Abbott, 
Chief Justice; Bayley, Holroyd, and Best, jus- 
tices — made a .similar decision. (Madrazo vs. 
Willcs, 3 Barn, and Alderson, 353.) That was 
an action brought by the owner of a Spanish 
vessel, engaged in the Africat) slave trade, against 
the commander of an English armed ship for a 
seizure upoii' the high seas, and the liberation of 
the negroes imprisoned. 



*Servitus autera est constitutio juris gentium, qua qttis 
dominio alieno, contra naturani, subjieitur. — Book 1, title 3, 
section 2. 



The Senator from Louisiana cited, also, the 
decision of our Supreme Court in the case of a 
Spanish vessel. The Antelope, captured with al- 
most three hundred negroes on board, brought 
from the coast of Africa, which vessel had been 
libeled in the admiralty of the United States for 
condemnation, it was argued by some of the 
ablest lawyers this country has ever produced — 
by William Wirt, Attorney General, and Francis 
Scott Key, for the appellnnts; and by John Mc- 
Pherson Berrien and Charles J. Ingersoll for the 
claimants. The judges were unanimous in the 
opinion that slavery is recognized by the law»of 
nations, and even the African slave trade is not 
prohibited. In commenting on this decision, to 
be sure, the Senator from New York attempted a 
refinement by admitting that a slave trader could 
not be calUrd a " piratical "outlaw. Sir, the dis- 
tinction amounts to naught. There is no outlaw 
upon the seas, except a pirate. He, alon<!, of all 
sailors, is unprotected on the highway of nations. 
The pirate belongs to no country, and his offenses 
are against the whole world. Any one is au- 
thorized to arrest him, and the courts of any 
nation may convict and execute him. In Octo- 
ber, 1834, twelve men of Spanish birth were tried 
for piracy at Boston, and seven of them were 
convicted and sentenced to death. They had been 
captured by a British officer, but, as their last 
outrage was committed against an American ves- 
sel, they were sent to the United States for trial. 
They could as well have been tried and punished 
for this offense in England. — (United States vs. 
Gibert, 2 Sumner, 24.) 

These men were charged as " pirates and fel- 
ons," according to the law of nations, and of 
course were not sent to Spain for punishment or 
trial. But, although Great Britain and the United i 
States have both denounced the African slave 
trade — have declared it to be a capital offense — 
our Government cannot punish or otherwise mo- 
lest an Englishman for engaging in it. " The 
courts of no country," said Chief Justice Mar- 
shall, " execute the penal laws of another." 
(10 Wheaton, 123.) The African slave trade is 
piratical, to be sure, for our citizens, not by the 
law of nations, but in virtue of our own statutes. 
If any of otir citizens should engage in it, there- 
fore, we can punish the offense; but no other na- 
tion can lay a hand upon him. ' 
The case of a French schooner, La Jeune 
Eugenie, in the circuit court for the district of 
Massachusetts, has been cited as an opposite de- 
cision. Mr. Justice Story held, to be sure, that 
inasmuch as the African slave trade had been 
forbidden by the laws of France, no claim of own- 
ership could be preferred to slaves rescued from 
captivity on the high seas in behalf of a French 
subject. But 'instead of pronouncing slavery an 
outlaw, the courtdecided exactly otherwise. What 
the Senator from New York read to us two weeks 
ago was in reference to the African slave trade 
—of which Mr.. Justice Story well said, that be- 
side the question of enslavement, it involved 
necessarily a breach of all moral duties and humane 
precepts. As to the institution of slavery, how- 
ever, the judge declared that it had a" legitimate" 
existence. — (2 Mason, 445, 446.) 

But this is not all. I find that, even prior to 
the Constitution, our revolutionary fathers con- 
sidered slaves as legitimate property , and extended 



16 



to the master all the protection of the confedera- 
ted Government. In the provisional articles of 
Eeace with Great Britain, signed at Paris, Novem- 
er30, 1782, by John Adams, Benjamin Franklin, 
John Jay, and Henry Laurens, as American 
commissioners, it was stipulated that the British 
forces should retire from the limits of the United 
States without " carrying away any negroes or 
other property "of the inhabitants. — (U. S. Stat- 
utes, vol. 8, p. 57.) The British commanders did 
not observe this article; and General Washington, 
after having addressed them several remonstrances 
without effect, laid the matter before the Conti- 
nental Congress. It was referred to a committee 
for consideration; and finally, August 9, 1786, a 
resolution was adopted that the Secretary of For- 
eign Affairs should cause the numbers, names, 
and ownership of all negroes " belonging to the 
citizens of each State, and carried away by the 
British in contravention of the late treaty of 
peace," to be ascertained, and lists thereof made. 
— (Journals of Congress, vol. 4, p. 680.) 

Between the 5th of April and the 25th of No- 
vember, 1783, as Mr. Jefferson tells us, three 
thousand negroes were thus taken away; and 
our Government required, and at length com- 
pelled, the Government of Great Britain to pay 
for them. What authority, then, has the Sen- 
ator from New York in asserting that American 
slavery is an institution beyond the pale of the 
law ? I leave him to the answer which these facts 
afford. I do not state them, sir, because I admire 
the institution, but because they are facts; and it 
is our duty to decide all public questions in the 
light of truth, upon established principles of law, 
without any perversion of historical records. 

Frequent reference has been made to the legis- 
lation of Congress, in early times, to show that 
the original purpose of the Federal Government 
was to exclude slavery from the Territories. I 
am willing to abide an impartial review of all 
those enactments. 

In the fifth resolution of the Ohio Legislature, 
you will recollect, our attention is specially in- 
vited to the scheme of governments adopted by 
the Continental Congress on the. 23d of April, 
1784. It may be found at length in the compila- 
tion of the public land laws, and contains no pro- 
vision to exclude slavery from the States to be 
constituted and afterwards admitted into the 
Union. I begin with this scheme, Mr. President, 
because it was the first ever proposed; because 
Thomas Jefferson is said to have been its author; 
because it embodies all the essential features of 
the ordinance of July, 1787, except the anti-sla- 
very clause. The deed of Virginia to the United 
States for the Northwestern Territory was dated 
the 1st of March, 1784, so that this scheme fol- 
lowed closely upon the cession. I admit, sir, that 
a clause was proposed for the restriction of sla- 
very after the year 1800, and Mr. Jefferson voted 
for it; but his reasons and those of his associates, 
as I will soon demonstrate, were of a temporary 
and special character. The clause was rejected 
at that time, only seven States approving its 
principle; and the scheme went into effect with- 
out any provision upon that subject. To the 
General Assembly of Ohio, therefore, on the 9th 
of April, 1856, almost seventy-two years after 
the transaction, has been reserved the honor of 
discovering that " the original American policy" 



was embodied in a clause thus rejected, on full 
consideration, by a decisive vote. Sir, to my 
humble apprehension, the "original" policy of 
our Government, in this respect, the true "Amer- 
ican" policy, should be gathered from the scheme 
as it was finally adopted. 

Three years later, in the Continental Congress^ 
Nathan Dane, of Massachusetts, proposed an 
ordinance for the government of the Northwest- 
ern Territory, and on the 13th of July, 1787, it 
received the votes of eight States for adoption. 
Mr. Jefferson was then in Europe. The ordi- 
nance contains many clauses not authorized by 
the Articles of Confederation; and of these, the 
most prominent is that for the admission of the 
new States to be formed under its provisions. 
Accordingly, in the Federalist, No. 3G and No. 
42, Mr. Madison declared that it was a clear case 
of usurpation by the continental authorities. 
With a consciousness of the defect of congres- 
sional power in this regard, Mr. Jefferson's 
scheme proceeded upon the idea of establishing 
colonial States, and that no direct legislative con- 
trol could be exercised over them. Provision 
was made, consequently, for a charter to be 
issued, under the seal of the Confederation, by 
which the form of a compact might be assumed, 
as between the Congress on the one side, and the 
Colonies on the other. Mr. Dane adopted the 
same idea for the legislation of July, 1787, and 
his ordinance de(;lares that six articles therein 
enumerated " shall be considered as articles of 
compact between the original States and the 
people and States in the Territory, and forever 
remain unalterable, unless by common consent.'' 
The anti-slavery clause constituted the sixth and 
last of these articles; and I call the attention of 
the Senate to the fact, especially, because it 
it explains the series of congressional acts rela- 
tive to the States of Ohio, Indiana, Illinois. 
Michigan, and Wisconsin, upon which the Sen- 
ator from Iowa planted himself. 

We have thus seen that in July, 1787, the Con- 
tinental Congress adopted a restriction of slavery 
which it had rejected three years before. Why 
this change.' The scheme of 1784 embraced all 
the territories ceded and to be ceded by the States; 
but the ordinance of 1787 was limited to the ter- 
ritory northwest of the Ohio river, and was based 
entirely upon the Virginia cession. Now, sir, it 
so happened that from the commencement of the 
revolutionary war, until the signature of the Fed- 
eral Constitution, in September, 1787, the State 
of Virginia was employing all her influence and 
all her votes to suppress the African slave trade. 
Restrained from the consummation of that pro- 
ject by the oft-repeated royal veto upon the colo- 
nial statutes, the people of Virginia, in conven- 
tion of delegates, August, 1774, agreed neither to 
import nor purchase another slave fi-om Africa, 
the West Indies, or any place abroad. Four 
years afterwards — as soon almost as she had 
thrown off British allegiance — Virginia enacted a 
law to prohibit the foreign slave trade. Jetferson 
was its author; but to Madison's perseverance 
and energy (as Jefferson himself said) is due a 
large share of the success. In the constitutional 
convention, we all know, Virginia proposed that 
the introduction of slaves from abroad should be 
forbidden after the year 1800, or, if possible, at 
once. She was supported in this by Delaware, 



17 



New Jersey, and Pennsylvania; but she was de- 
feated by tlie votes of" the two Carolinas, Georjia, 
and Maryhvnd, with the votcsof New Hampshire, 
Massachusetts, and Connecticut. New York did 
not give her any assistance, and Rhode Island 
was not represented. The extreme South wanted 
more slaves; the eastern States were engaged in 
the African slave trad--, and objected to its sup- 
pression. 1 repeat, Mr. President, the three 
States of Massachusetts, New Hampshire, and 
Connecticut — Maine was then u part of Massa- 
chusetts, and Vermont of New York — united 
with Nortli and Soutii Carolina, Georgia, and 
Maryland, on the 2.5th of August, 1787, in de- 
claring that the African slave trade should be tol- 
erated until January, 1808, a period of almost 
twenty-one years. It was in vain that George 
Mason pointed to the example of Virginia, and 
implored the convention not toperpetiiale slnvcry 
upon the American continent. (Mad, on Papers, 
vol. 3, pp. 1.S98, 13!)9.) Newport, in the State 
of Rhode island, was the place from which ves- 
sels engaged in the slave trade were fitted out; 
but Massachusetts furnished a large portion of 
the capital, and realized a share of the profits. 

Let us pause here, Mr. President, for one mo- 
ment. At this period (1787) the abolition of 
elavery was a possible, and even a probable occur- 
rence. The citizens of Virginia, Delaware, Penn- 
sylvania, and New Jersey, were anxious to pre- 
vent the further influx of slaves, and thus prepare 
for the emancipation and colonization of those 
already introduced. The slaves of the Carolinas 
and Georgia were f(!w in number. There was not 
a cotton factory on this continent. The cotton- 
gin had not been invented. Cartwright had just 
contrived the power-loom, but it was not in use. 
The first cotton sent from the United States to 
England was in 1785; but it was not until the first 
year of Washington's administration (1789) that 
sea-island cotton was planted here, and wpland 
cotton cultivated for exportation. Previous to 
that time, of course, slavery was not profitable, 
and might have been abolished. I wish to engage 
in no criminations; but I must say that it does not 
become the New England States at all to quarrel 
with the South about slavery, or affect any special 
degree of virtue upon the subject. More slaves 
were brought into the Union from abroad between 
1787 and 1808, than were here at the time of the 
adoption of the Federal Constitution. Madison 
warned the convention, in express terms, of the 
consequenceswhich have since ensued. " Twenty 
years," he said, "will produce all the mischief 
that can be apprehended from the liberty to im- 
port slaves." (Madison Papers, vol. 3, pp. 1427, 
1428, 1429.) 

In all Jefferson said or wrote respecting the 
institution of slavery, he coupled it with the 
African slave trade; and he looked upon the sup- 
pression of that as an indispensable prerequisite 
to emancipation. In one of his most remarkable 
papers — where he enumerates all those achieve- 
ments the memory of which consoled him in 
old £ige with the reflection that he had not lived 
in vain — we find his Virginia statute for the ab- 
olition of the slave-trade ; but neither in that paper 
nor in his elabo.-ate autobiography, nor in any of 
his letters or documents, (so far as I can remem- 
ber,) does he make the least reference to the prop- 
osition for excluding slavery from the Territories. 



How singular, Mr. President,if he deemed that so 
eminentand essential a matter as is now claimed — 
if he supposed it to be (as the O'lio Legislature 
declares) an exposition of" the original American 
policy" on the subj(!ct of our territorial govern- 
ments — that he should never have imagined it 
worthy of his own comment, notice, or even 
recollection ! 

Jefi'erson was anxious to suppress the horrors 
of the African slave trade; and as the Congress 
of the Confederation had no power to effectuate 
this great reform, directly, he urged upon the State 
of Virginia to circumscribe the market for slaves, 
and thus, indirectly, abate the foreign traffic, by 
an exclusion of slavery from all her domain north 
and west of the Ohio river. I'ut Virginia had re- 
solved to donate this empire to the Confederation, 
and therefore referred him to the continental 
authorities. He appeared in Congress as a Del- 
egate in 1783, aided to complete the cession of the 
Northwestern Territory, and at once offered his 
territorial scheme, with an anti-slavery clause, in 
order to accomplish the design which he had so 
long cherished. He failed, however, as I have 
stated;butupc>n James Madison and the otherdel- 
egates from Virginia, in the next Congress, was 
devolved the execution of his purposes. This, sir, 
will explain the sixth article of the ordinance 
adopted July 13, 1787, excluding the institution 
of slavery from the Northwestern Territory. But 
after the Federal Constitution had been signed at 
Philadelphia, on the 17ih of September, 1787, 
such an exclusion became entirely useless, inas- 
much as a compromise had been made in thai in- 
strument whereby Congress was empowered to 
suppress the African slave trade in the year 1808. 
The anti-slavery article of the ordinance was dic- 
tated, therefore, by reasons of a temporary char- 
acter, and, as I will prove in a few moments, 
was purposely omitted in all new cases of terri- 
torial government, after the adoption of the Fed- 
eral Constitution. 

Perhaps, Mr. President, some Senator may 
suppose that 1 have deal.t in mere conjecture, and 
ask me for the witness by whom 1 establish a 
fact of such pregnant and decisive consequences. 
Sir, I call him not only from the grave, but from 
silence hitherto as impenetrable almost as the 
grave itself. Among the manuscripts purchased 
by Congress from the executors of James Mon- 
roe, in the possession of our Committee on the 
Library, and as yet unpublished, is an original 
letter from James Madison, dated Montpelier, 
February 10, 1820, of which 1 will read an 
extract: 

'• I have observed as yet, in none of the views taken or 
the ordinance of 1787. interdicting slavery northwest of the 
Ohio, an allusion to tiie circuinstanee that, when it passed, 
the Congress had no authority to proliibit the importation 
of slaves from abroad ; that all tlie Slates hud, and some 
wore in the full exercise of the riftht to import thcni; and, con- 
sequently, that there wjis nomo.luin which Congress could 
check the evil but the indirect one of narrowing the space 
open for the reception of slaves. 

" Had a Federal authority then existed to prohibit directly 
and totally the importation from abroad, can it be doubted 
that it would have bebn exerted, and that a regulation 
h.avins merely the effect of prcventin<; the interior disposi- 
tion of slaves actually in the United States, and creating a 
distinction among the States in the degrees of their sover- 
eignty, would not have been adopted, or perhaps thought 
of.'" 

You will recollect, Mr. President, that Madi- 
son was a member of the Congress which en- 



18 



acted the ordinance. He knew, therefore, all 
the circumstances attending its adoption; and 
here, by his own liand, those circumstances arc 
related. The occasion of the letter was itself 
solemn, and even momentous. In February, 
1820, while the Missouri coiltroversy engao:ed 
universal attention — when the ordinance of 1787 
was made tlie staple (tis it has since been) of all 
the argument for congressional intervention — we 
find tiuit Monroe, then President of the United 
States, addressed Madison for advice; and Mad- 
ison, from a retirement no longer disturbed by 
partisan suggestions, informed him of the special, 
temporary, and exceptional reason upon which 
the anti -slavery clause was founded. 

Why, sir, let us n call what happened at the 
second session of the First Congress. North Car- 
olina did not come into the Union until after 
Washington's administration had commenced, 
and then at length surrendered her western do- 
main — the jiresent State of Tennessee. On the 
26th of May, J79U,an act was passed to establish 
a government for the region thus ceded. (United 
States Statutes, vol. ], p. 123.) It extended the 
provisions of the ordinance of July 13, 1787, 
except the anti-slavery clause, over the territory of 
the United States south of the Ohio river. The 
Senator from Iowa undertook to account for this 
by a suggestion that North Carolina so stipulated 
in her deed of cession; to which I answer, that if 
it had been the estalilislied policy of the Govern- 
ment (as now pretended) to exclude slavery from 
the Territories of the Union, Congress never 
would have accepted tlie grant upon such terms. 
The cession of Virginia was rejected by the Con- 
tinental Congress from .January, 1781, until March, 
1784, because of certain conditions exacted by 
that State, and from which, in October, f783, her 
Legislature receded. So that, if the policy of 
Congress had been what the Senator claims. 
North Carolina would have been forced to aban- 
don the condition proposed. 

But the Senator says, also, that Congress tol- 
erated slavery in Tennessee, because it existed 
there at the time, and prohibited the same insti- 
tution in the territory northwest of the Ohio river, 
because it did not exist there. The Senator is 
misinformed in this particular. There were slaves 
in the Northwestern Territory when the ordi- 
nance of 1787 was adopted; in fact, sir, there 
were none but slaviholding settlements. These 
were at Detroit, now in the State of Michigan, 
where the Pawnee Indians were held as slaves, 
and at St. Vincennes, Indiana, and Kaskaskia, 
Illinois, where negro slavery existed. As late 
as February 12, 1793, slav('S were held in the 
Territory, by color of law; and the fugitive slave 
act of that date, the first ever passed, expressly 
provided for their recapture. (United States 
Statutes, vol. 1, p. 3L»2.) Moreover, Mr. Presi- 
dent, slavery existed in what now constitutes 
Indiana and Illinois, despite the ordinance of 
July 13, 1787, from the time of its first settle- 
ments until after both those States had been ad- 
mitted into the Union. In certain resolutions 
unanimously adopted December, 1806, by the 
Legislature nf Indiana Territory, to which I shall 
have occasion to allude hereafter, this fact is re- 
lated to Congnss in the most positive terms. 
The first constitution of Illinois, adopted August 
26, 1818, sanctioned the title to all slaves then 



within the State; and Illinois excluded slavery, 
as a permanent institution, by a small number of 
votes. 

In this connection, Mr. President, I would ask 
why, if the anti-slavery clause of the ordinance 
of 1787 was intended to have so permanent and 
extensive a character as now claimed, did not the 
constitutional convention, which was sitting at 
Philadelphia at the time of its enactment, embody 
that provision in the Constitution of the United 
States.' It could not have escaped the attention 
of the members — many of whom were likewise 
members of Congress; and the fact is, as I have 
shown, that their attention was directly called to 
the question of conferring on Congress a legisla- 
tive power over the Territories. All this is inex- 
plicable, sir, except in view of the statement con- 
tained in Mr. Madison's letter. 

It is true that the same Congress which refused 
to exclude slavery from the region south of the 
Ohio river, had passed an act on the 7th of August, 
1789, whereby the ordinance of 1787 was modified 
in two unimportant particulars, and that this was 
done, as the preamble states, to adapt the ordi- 
nance to the Federal Constitution. But thatafiirm- 
ance rested, as did all the subsequent acts for the 
subdivision of the Northwestern Territory and 
the admission of the States formed out of it, upon 
an idea that the ordinance was (as its own terms 
declare) a " compact" between the people of the 
Territory and the people of the thirteen original 
States, and was " forever" unaltei-able. Even in 
the act of Ajiril 19, 1816, for the admission of In- 
diana as a State, it is recited that the six articles 
of the ordinance to which I have alluded, were 
"irrevocable" articles. (United States Statutes, 
vol. 3, p. 289.) I do not acknowledge that this 
was a correct exposition of the legal effect of the 
Constitution of the United States upon the ordi- 
nance; but I say that it was the opinion enter- 
tained by Congress and by all the courts of tho 
northwestern States, until December, 1850, when 
the case of Strader vs. Graham, 10 Howard, 82, 
was decided by the Supreme Court here. It is 
merel)' idle, then, to citr; either the ordinance or 
the act of August 7, 1789, or any of the acts relat- 
ing to the Northwe.stern Territory or States, as 
an indication of the general policy of the Consti- 
tution or of Congress. 

A great deal has been said in praise of the 
ordinance, here and elsewhere, as if it were the 
perfection of human achievement. How singu- 
lar that, like the Missouri restriction of Marcli 
6, 1820, its virtues should not have been discov- 
ered until after it ceased to exist. During the 
whole period of its operation in the Territory 
now constituting the Statesof Ohio, Indiana, and 
Illinois, the ordinance was disliked and even de- 
tested by the people. Why should this have 
been otherwise ? Until the Territory contained 
five thousand free male inhabitants of full age, 
the legislative authority was vested in a Governor 
and three judges, appointed by tiie President, 
and not responsible, in any degree, to those over 
whom they exercised so great a dominion. That 
this authority was abused by the Governor and 
judges, there are many records of Congress to 
demonstrate. 

The ordinance invested the Governor with an 
absolute veto, one that all the members of the 
Territorial Legislature together could not over- 



19 



rule. It was exercised by the first Governor, 
Arthur St. Clair, so frequently, and in a manner 
so reckless and wanton, as to have left an im- 
pression to this hour upon the political character 
of Ohio. In May, 1851, almost half a century 
after the ordinance had ceased to operate, a con- 
vention of de!(-2;ates assembled to revise the State 
constitution; and although experience had shown 
the wisdom of a qualified or limited veto, such 
as the President exercises, the tradition of St. 
Clair's despotism was so vivid, and the senti- 
ment of the people so well understood, that all 
attempts to conf(.'ra like authority upon the Gov- 
ernor met with si^^nal defeat. Never, since Ohio 
was a State, has the veto power been tolerated 
ill any shape or foim. 

The ordinance required a property qualifica- 
tion for all officers and electors. A member of 
the Territorial Legislature was required to have, 
in his own right, a .fee-simple of two hundred 
acres, and an elector a like estate in fifty acres; 
and this, sir, at a time when the public lands 
were sold only in large tracts, and at enormous 
prices. Agrunstsueh a restriction upon the right 
of suffrage the inhabitants of the Territory pro- 
tested from first to last. 

Ohio has been styled, of late years, the " first- 
born" of the ordinance. This title is one which, 
in early times, she would have considered as no 
compliment. Certainly she was not a dutiful 
child. Her Slate governmejit was formed with- 
out the sanction, and against the will of the Ter- 
ritorial liCgislatLire. It was upon an earnest 
appeal from the inhabitants — disqualified to vote, 
most of ihem, under the ordinance — that the act 
of April 30, 180:2, to authorize the adojition of a 
State constitution was passed. Even the Dele- 
gate in Congress, elected, of course, by the " qual- 
ified" voters, opposed it. ButPresident .Tefferson 
lent his ear and his influence nobly to the com- 
plaints of an oppressed people. The act of Con- 
gress enlarged the right of suffrage at the election 
for memners of the convention far beyond the 
provisions of the ordinance. In truth, Mr. Pres- 
ident, the ordinance was trodden under foot by 
the people, and all who then exercised authority 
under it were treated with contempt and derision. 
While the convention was in session at Chilli- 
cothe, Governor St. Clair demanded the right of 
addressing it in his official character; but the del- 
egates refused to recognize him — refused to hear 
him at all, until he asked the privilege merely as 
an individual. They required him to disband 
the Territorial Legislature which had appointed 
a session at Cincinnati about that time. Of this, 
however, there was no need; the Legislature had 
been driven from Chillicothe by a popular tumult 
the previous year, and its members concluded not 
to provoke such extremities again. There never 
was a community so disgusted with its form of 
government. 

Strange to relate, Mr. President, one of the 
most obnoxious features in the ordinance at that 
time was the anti-slavery clause. It was evaded 
in Ohio by a simjile process. An indenture was 
executed in Virginia by which a slave covenanted 
to serve his master for life; and then the slave 
was taken to the Northwestern Territory as an 
apprentice. To such 'an extent did this prevail 
under the ordinance, that when the first constitu- 
tion of Ohio was adopted, November 29, 1802, a 



provision was inserted to annul such indentures 
thereafter. 

In the residue of the Territory, Indiana and 
Illinois, this question assumed a more serious 
importance. In November, 1802, while the Ohio 
convention was in session, the inhabitants of the 
Indiana Territory (comprising what is now Illi- 
nois as well as Indiana) elected delegates to a 
territorial convention, by which their grievances 
might be considered and made known to Con- 
gress. The convention assembled at Vincennes 
in December of that year, and General Harrison 
pr(!sided over its deliberations. A memorial to 
Congress was prepared, signed, and sent to the 
House of Representatives. Tlie original docu- 
ment is now before me — authenticated by Gen- 
eral Harrison's signature and by the territorial 
seal — taken from the files of the House of Repre- 
sentatives. As it has never been printed, to my 
knowledge, I will read those paragraphs which 
relate to the prohibition of slavery and to qual- 
ified suffrage: 

To the Senate and House of Representatives of the United 
States in Congress asseinldcd : 

The memorial and petition of the inhabitants of the In- 
diana Territory respoctfiilly shovveth : 

That nine tenths of your memorialists being of opinion 
that tlie sixth article of compact, contained in the ordinance 
for the ^overinnent of the Territory, has been extremely 
prejudicial to their interest and welfare, requested the Gov- 
ernor, by petitions from each of the several coinuies, to 
call a general convention of the Territory for the purpose 
of taking the sense of the whole people, by their represent- 
atives, on a subject to them so interesting, and of afterwards 
taking such measures as to thetn might seem meet, by pe- 
tition to your honorable bodies, not only for obtaining the 
repeal or suspension of the said article of compact, but al.so 
lor that of representing and petitioning for the passage of 
such other laws as would, in the opinion of the convention, 
be conducive to the general welfare, population, and hap- 
piness of this distant and unrepresented portion of the 
United States. 

This convention is now sitting at Vincennes, and have 
agreed to make the following representation to the Con- 
gress of the United States — not in the least doubting but 
that everything thoy can desire (not prejudicial to the Con- 
stitution or to the interest of the General Government) will 
readily be granted to them. 

The sixth article of compact between the United States 
and the people of the Territory, which declari^s there shall 
be neither slavery nor involuntary servitude in it, has pre- 
vented the country from populating, and been the reason 
of driving many valuable citizens possessing slaves to the 
Spanish side of the iVIississippi — most of whom, but for the 
proliibition contained in the ordinance, would have settled 
in this Territory — and tlie consequence-i of keeping that 
prohibition iu force will he that ol' obliging the numerous 
class of citizens disposed to emigrate to seek an asylum in 
that country where they can be permitted to enjoy their 
property. 

Your memorialists, however, and the people they repre- 
sent, do not wish for a repeal of this article entirely, but 
that it may be suspended for the term often years, and then 
to be again in force ; but that the slaves brought into the 
Territory during the continuance of this suspension, and 
their progeny, may be considered and continued in the same 
state of servitude as if they had remained in those parts of 
the United States where slavery is permitted, and from 
whence they may have been removed. 

Your memorialists further show, that they view that part 
of the ordinance for the government of the Territory wliich 
riiquires a freehold qualification in fifty acres of laiid, as 
elector for members to the Giin^ral Assembly, as subversive 
of the liberties of the citizens, and tending to throw too 
great weight in the scale of wealth. They, therefore, pray 
tiiat the right of suffrage (in voting for representatives to 
the General Assembly) may be extended to the free male 
inhabitants of the Territory, of the age of twenty-one years 
and upwards, but under such regulations and restrictions as 
to you in your wisdom may seem proper. 



20 



your memorialists are well aware that the consideration 
of the numerous objects contemplated by this memorial 
will require more time than can well be t^pared from the 
important and general concerns of the Union; but when 
tlii'y retlect upon their nc>rlected and orphan like situation, 
they are cinboldened to hope that their wants and wishes 
will meet with all the induli,'ence and attention necessary 
to secure to tliein the relief which is so essential to their 
welfare and happiness. 

Done at Vnicennes, in the Indiana Territory, the 28th 
day of December, in the year of our Lord 1802, and of the 
independence of the United States the twenty-seventh. 

By order of the convention, 

WILLIAM I1I:NKY HARRISON, 
President, and delegate Jrom the county of Knox. 

Test: 

John Rice Jones, Secretary. 

[Territorial seal.] 

This memorial was ]ircsented to the House of 
Representatives on the 8th of February, 1803, 
and was referred to Messrs. Randolph, Griswold, 
Robert Williams, Lewis R. Morris, and Hoge, 
as a select committee. 

On the 2d of March, 1803, the committee made 
an adverse rcpoit on both the particulars which 
I have speciiii'd. (American State Papers, " Pub- 
lic Lands," vol. 1, p. 160.) This was referred, 
says the Clerk's indorsement, to " a Committee 
of the Whole^House to-morrow." The morrow, 
unfortunately, was the last day of the Congress, 
and the sabject, of course, was not considered. 
Two facts are worthy of notice in this connection: 
First: The African slave trade had notbeenabol- 
ished; it was still entitled to a license of five 
years, almost, under the Constitution. Second: 
A scheme for the concerted insurrection of slaves 
in Virginia had been discovered three years pre- 
viously, and the public mind had not recovered 
from that alarm. I 

On the 15th of December, 1803, the memorial j 
was eigain considered, together with the report 
of the select commiitee, and thereupon Messrs. 
Rodney, Boyle, and Rhea, of Tennessee, were 
appointed a new committee to examine it. These 
gentlemen reported, February 17, 1804, in favor 
of the prayer of the petition, and especially that 
the sixth article of the ordinance should be sus- 
pended for ten years, " so as to permit the intro- 
duction of slaves born within the United States 
from any of the individual States." (Am. State 
Papers, "Miscellaneous," vol. 1, p. 387.) In 
respect of limited suffrage in the Territories, the 
committee said: 

" It must be the true policy of ilic 'T^itcd States, witli 
the millions of acres ol habitable eoiinuy which she possess- 
es, to cherish those principlis which •■ave birth to her in 
dependence and created her a nation, by affording an 
asylum to the oppressed of all countries." 

A resolution was reported, therefore, contem- 
plating what is now called "alien" suffrage. 

This report, also, was coirnnilted to a Commit- 
tee of the Whole House, but never was consid- 
ered, I suppose, as there is no trace of any vote 
or discussion. 

At the next Congress, December 18, 1805, the 
subject was again brought before the House, and 
was referred to Messrs. Garnett, Morrow of 
Ohio, Parke, Hamilton, Smith of South Car- 
olina, Walton, and Van Cortlandt. This com- 
mittee reported in favor of the petition, February 
14, 1806. (Am. State Papers, " Miscellaneous," 
vol. l,p. 450.) 

It will be noticed that Jeremiah Morrow, then 
the sole Representative of the State of Ohio, was 
a member of the committee; and, as the report was 



unanimously made, it might be well to ascertain 
what his opinions were. I will quote, therefore, 
from this document: 

" Having attentively considered the facts slated in the 
said petitions and memorials, they are oC opinion that a 
qualified suspension, for a limited time, of the sixth article of 
the compact between the orijiinal States and the people and 
States west of the river Ohio, would be beneficial to the 
people of the Indiana Territory. The suspension of this 
article is an object almost nniversally desired in that Terri- 
tory. It appears to your committee to be a question en- 
tirely difierent from that between slavery and freedom, 
inasmuch as it would merely occasion the removal of per- 
sons, already slaves, from one part of the country to anottier. 
The good eliticts of this suspension, in the present instance, 
would be to accelerate the population ot' that Territory, 
hitherto retarded by the operation of that article of compact, 
as slaveholders emigrating into ih ewestern country might 
then indulj^e any preference which they might feel for a set- 
tlement in the Indiana Territory, instead of seeking, as 
they are now compelled to do, settlements in other States 
or countries permitting the introduction of .slaves. The 
condition of the slaves themselves would be n)uch amelio- 
rated by it, as it is evident from experience that the more 
they are separated and diffused, the more care and attention 
are bestowed on them by their masters ; each proprietor 
h.iving it in his power to increase their comforts and conve- 
niences in proportion to the smallness of their numbers. The 
daiig('rs, ton, (if any are to be apprehended,) from too large 
a black population existing in any*one section of country, 
would certainly be very much diminished, if not entirely 
removed. But whether dangers are to be feared from this 
source or not, it is certainly an obvious dictate of sound 
policy to guard against them as far as possible. If this dan- 
ger does exist, or there is any cause to apprehend it, and 
our western brethren are not only willing but desirous l« 
aid us in taking precautions against it, would it not be wise 
to accept their assistance.'' We should benefit ourselves 
without itijuring them, as their population must always so 
far exceed any black population which can ever exist in 
that country, as to render the idea of danger from that source 
chimerical. 

" Your committee consider the regulation contained in 
the ordinance for the government of the territory of the 
United States, which requires a freehold of fifty acres of 
land as a qualification for an elector of the (Jeneral Assem- 
bly, as limiting too much the elective franchise. Some 
restriction, however, being necessary, your committee con- 
ceive that a residence continued long enough to evince a 
determination to become a permanent inhabitant, should 
entitle a person to the rights of suffrage. This probationary 
period need not extend beyond twelve months." 

Thecommiltee reported these resolutJ^ms, with 
others, for adoption: 

" That the sixth article of the ordinance of 1787, which 
prohibits slavery within the Indiana Ten itory, he suspended 
for ten years, so as to permit the introduction of slaves, 
born within the United States, from any of the individual 
States. 

"That every while freeman of the age of jwenty-onc 
years, who has resided within the Territory twelve months, 
and within tl-e county in which he claims a vote six month? 
immediately preceding the election, shall enjoy the righti< 
of an elector of the General Assembly." 

It may be, Mr. President, that the citizens of 
Ohio will sanction the doctrines expressed in the 
resolutions of the present Legislature; but, if so, 
they will depart from the landmarks established 
by that staunch old patriotand pioneer, Jeremiah 
Morrow, in the days when he alone spoke for 
Ohio in the other House of Consress — those ever- 
memorable days, too, when Thomas Jefferson 
stood at the helm of our Federal Government. 

But, sir, I have not finished the history of this 
matter. Tired of delays, at length the inhabit- 
ants of Indiana Territory took the law into their 
own hands; and, by an act of their Legislature, 
recognized slavery as a territorial institution. 
The fact is stated in two other documents (never 
published) which I have before me — taken like- 
wise from the files of the House of Representa- 
tives. They were presented, it seems, on the 



21 



17th of Januarjr, )806, and referred to the select j 
committee previously appointed, of which Mr. j. 
Garnctt was chairman. They will best explain jj 
themselves: I 

" At a meeting of the citizens appointed to form a com- j 
mittee fioni the several townships in the counties of St. 
Clair and Randolph, to take into consideration and repre- 
sent to the General Government the grievances of these 
counties, the ^Jtli day of November, 1805: 

" Present in committee : Janioshcnion, John Messenger, i 
William Scott, John Whilisidc, Moses Short, John Edgar, 
10. Backus, John Bcaird, F.. r.ildovback, John Everts, Wil- 
liam Cliaffin, Kalph Drury, Hniry Kevin, William Gohigs, 
Samuel Konney, Robert Robinson, Jean F. I'erry, N. Jar- 
rott, Etienne Pansannce, and William Biggs. 

"On motion, unanimously resolved. That t'olonel John 
Edgar be chairman, and Robert Robinson clerk of this com- 
mittee. 

"iieso/rcrf. That a memorial be prepared stating the griev- 
ances of these counties ; that it be signed by the members 
of this committee, and transmitted to the Senate and House 
of Representatives of the United States in session. * * 

" And whereas the ordinance of 1787 for the Government 
of this Territory is respected by the people as the consti- 
tution of their country, this committee ealertain a hope 
that the General Government, after guarantying to tlie 
people the privileges in that ordinafice contained, will not 
pass unnoticed the violation thereof by the late act of the 
Legislature of this Territoiy, authorizing the importation 
of slaves and involuntary servitude for a long term of years. 

"And although this committee ent(!rtain no doubt but that 
the act in question will render service by adding a spring to 
the growth of this country, they express the disapprobation 
of a people who never will consent to a violation of that 
ordinance for this privilege of slavery. When Congress 
sihall deem a change of the ordinance expedient, they will 
cheerfully agree to the measure." 

Some Senator may suppose, perhaps, that the 
committee-iTien ortheirconstituents were opposed 
to slavery, and resented the idea of its introduc- 
tion. Not at all, sir. They wished a division of 
the Territory, and this complaint was inserted 
with others, in order to make out a case of usurp- 
ation against the Territorial Legislature. The 
establishment of a court of chancery was another 
pretext for complaint. In their inemorial (which 1 
1 have here) they implore Congress to allow them j 
the privilege of holding slaves: | 

"The memorial of the undersigned persons, being a com- | 
niittce appointed by the inhabitants of the Illinois, for the 
purpose of laying their grievances before the National Legis- 
lature, respectfully showeth : 

" That this country is composed of that part of the domain of 
the United States on the northwest of tlie river Ohio, which, 
by the ordinance or compact of 1787, has been designated to 
form the western State, bounded by the Mississippi, the 
Ohio, the Wabash, a north line drawn from Vincennes to 
the divisional line between the United States and Canada, 
and by this line to the Lake of the Woods and the Missis- 
sippi. 

" That for the purposes of a temporary government, it 
now fornisa niemberof the Indiana Territory, and is divided 
into two counties, Randolph and St. Clair. 

" That the form and extent of this government have, 
from certain circumstances, become not only undesirable, 
but productive of the most pernicious effects; and your me- 
morialists most humbly solicit your attention while they 
detail these circumstances, while they siiggest the propriety 
of a division of this government, and the erection of that 
part of it, above described, into a separate colony. 

" V'our memorialists approach your honorable body with 
the more confidence on this subject, since they flatter them- 
.«elves that the nation has become sensible of the situation 
in which they have been, their long struggles, their unpro- 
tected state, their patient submission to inconveniences, 
aad their claims to be now heard." 

" Your memorialists would further beg leave to solicit, 
as a thing which would be promotive of the prosperity of 
tbis country, the permission to hold slaves in it. 

" The principle of domestic servitude we do not advocate ; 
yet domestic servitude has found its way into the United 
States— it is immovably established there. When an evil 



becomes irremediable, is it not wisdom to convert it, if pos- 
sible, to some use .' 

'• However unnecessary this state of servitude may be 
thought in the eastern part of this Territory, no man has 
doubled its importance here, where, among whites, health 
and labor are almost incompatible ; here, too, a country to 
which it would probably bring back the principal settlers of 
Upper Louisiana, since they have been driven from home 
by the fear of losing their servants."' 

I have related the action of the third select com- 
mittee upon the Indiana inemorial, to which, as 
I have said, these two documents were likewise 
referred. That report was committed to the Com- 
mittee of the Whole House, but I cannot find 
that it ever came to a vote, or was even dis- 
cussed. 

The Legislature of Indiana Territory perse- 
vered, however, in its application. In December, 
1806, it adopted, unanunously, a series of resolu- 
tions upon the subject, and a copy was presented 
to the Senate as well as to the House. (Ameri- 
can State Papers, "Miscellaneous," vol. 1, p, 
467.) I will read one of the resolutions: 
I "Resolved unanimously. That the citizens of this part of 
1 the former Northwestern Territory consider themselves as 
I having claims upon the indulgence of Congress, in regard 
j to a suspension of the said article, because, at the time of 
[ the adoption of the ordinance of 1787, slavery was toler- 
[ ated, and slaves generally possessed by the citizens then 
j inhabiting the country, amounting to at least one half the 
j present population of Indiana, and because the said ordi- 
1 nance was passed in Congress when the said citizens were 
not represented in that body, without their being consulted, 
and without their knowledge and approbation." 

1 Upon these resolutions in the House, a fourth 
committee was appointed, of which Mr. Parke 
! was chairman. This committee reported on the 
! 12th of February, 1807, in ftivor of the rights 
j claimed by the Territorial Legislature. (Amer- 
j ican State Papers, " Miscellaneous," vol. 1, pp. 
! 477, 478.) I will not detain the Senate with 
1 reading from this report. 

; By this time, as we have seen, the question 
I had becoine complicated with that of dividing 
I the Territory, and at the next session, (December 
j31, 1808,) a report was made in favor of such 
I division. (American State Papers, " Miscella- 
I iieous,"vol. 1, pp. 945, 946.) A slight concession 
had been made by the act of February 26, 1808, 
in respect to the right of suffrage. (2 United 
I States Statutes, 469.) 

On the 3d of February, 1809, the Territory 
was divided, and Illinois obtained a separate 
government. (2 United States Statutes, 314.) 
This was followed by an act on the 27th of the 
same month, providing that the members of the 
Legislative Council in Indiana should be chosen 
by the people. (2 United States Statutes, 525.) 
By the acts of March 3, 1811, and May 20, 1812, 
the right of suffrage in both Territories was 
extended to the full limit suggested in Mr. Gar- 
nett's resolution. (2 United^States Statutes, 659, 
741.) 

Here ended the intervention of Congress; but 
the Legislature of Illinois Territory followed the 
example set by that of Indiana, and African sla- 
very continued to exist there (as I have said) until 
and after the adoption of a State government. 

This recital demonstrates another fact. It is, 
that legislation can exercise no permanent influ- 
ence in deciding whether slavery shall or shall 
not be established, or even continued. Vain and 
futile to the last degree is any enactment on that 
subject. The condition of the country, its climate, 



22 



soil, and staples of production, the supply of 
laborers — these arc the decisive elements, and 
these, in spite of all ordinances or other statutes, 
will at lengtli decide. It proves, also, that the 
institutions, adopted under a territorial form of 
government by the people, do not indicate always 
the character of the State after its admission into 
the Union. Indiana and Illinois are non-slave- 
holding States — not because the ordinance of 
1787 so provided, but because the labor of Afri- 
cans was found to be unproductive, and the in- 
flux of population from Europe (which began 
after Napoleon's downfall) supplied a host of la- 
borers in the northwest, far more efficient, intel- 
ligent, and useful than slaves ever can become. 

Let us return, however, to tiie primitive legis- 
lation of Congress. Soon after John Adams as- 
sumed the Presidential chair, it would seem, the 
discovery was made that a portion of the domain 
which now constitutes the States of Alabama and 
Mississipjii, did not belong to Georgia — as there- 
tofore supposed — but had been acquired from 
Great Britain by the limits prescribed in the 
treaty of peace. And therefore, on the 7th of 
April, 1798, a territorial government was estab- 
lished over it. Here, certainly, is an occasion 
for Congress — fettered by no terms of cession — 
to have realized that "American policy" which 
the Ohio Legislature instructs me to pursue. 
The inhabitants were few in number, and the 
slaves less — not so many, at all events, as were 
then ?held in the territory northwest of the Ohio 
river. But Congress only extended the ordinance 
of July 13th, 1787, " excepting and excluding 
the last article," over that region — or, in otiier 
words, refused to prohibit slavery at all. (United 
States Statutes, vol. ], pp. 549, 550.) 

Thfjnext case in order is that of Louisiana. 
It was during Mr. Jefferson's administration, 
March 2G, 1804. The tenth section alone is 
worthy of notice. That prohibits the importation 
of slaves from any port or place without the limits 
of the United States, or of slaves brought into the 
United States after a certain period. It should be 
mentioned in this connection, that an act of Con- 
gress had been passed February 28, 1803, im- 
posing severe penalties on the master of a vessel 
whicli imported negroes, from abroad, into any 
State whose Legislature had forbidden the traffic. 
(2U. S. Stat., 205.) The Louisiana act, how- 
ever, did not prevent the. introduction of slaves, 
except as before mentioned, from any part of the 
United States. (2 U. S. Stat., 286.) 

These are all the acts of Congress which pre- 
ceded the Missouri question; and from these, 
I submit, no argument can be drawn in favor of 
congressional intervention. 'Mean while, it should 
be recollected, five slaveholding States had been 
added to the Union — Kentucky and Tennessee 
while Washington was President; Louisiana 
during Madison 's administration ; Mississippi and 
Alabama during that of Monroe. Where can 
wediscover'at all the settled "policy, "of which 
we now hear so much — the determination that no 
slaveholding State beyond the original thirteen 
should ever be permitted .' Sir, there was no such 
policy or determination: it is a mere invention; 
a false coinage, of later and degenerate times. 

I have tried the patience of the Senate too much 
already, to venture upon a discussion of the cir- 
cumstances which attended the application, re- 



peated rejections, and final admission, of Missouri 
into the Union. Suffice it to say, sir, that the 
pretext employed against her — the fact, namely, 
that she was a slaveholding State — is a pretext 
cmjiloyed on that occasion for the first time. It 
was denounced b)'^ Jefferson (who was then alive) 
in the most bitter language; it was denounced, 
also, by Madison, by Jackson, and by Harrison. 
The letters of all these pul)lic men, addressed to 
Monroe, as President, may be found in the un- 
published collection to which I have alluded. 

This memorable controversy was the last 
struggle of the Federalists, as such, for political 
power. It originated with the Hartford conven- 
tion; and then, as now, the proposition to exclude 
slavery from the new Stales and Territories went 
hand-in-hand with a proposition to alter the natu- 
ralization laws. Mr. Madison declares, in the 
; letter from which I have quoted, that it was a 
1 scheme of "coalesced leaders" to divide "the 
I Republicans of the North from those of the 
: South," and make " the former instrumental in 
; giving the opponents of both an ascendency over 
j the whole. " The Kansas question of our day is 
[ but a repetition of that performance. 

The concession made by the act of March 6, 
1820, was unwise, and, as it proved, entirely un- 
available. I do not censure those great and pa- 
j triotic men who assented to it as an expedient for 
I terminating the dispute. They hoped it would 
i prove a "compromise" indeed — that it would 
1 settle the question forever — that the Union would 
j have security and the people an unbroken peace. 
1 Fn the same situation, assuredly, I should have 
' done as they did. 

j But, sir, alas, the mistake was a fatal one. It 
brought no security and no satisfaction. It un- 
settled all that had been settled before. It only 
1 encouraged new aggression; and in the midst of 
our war with Mexico, when the zeal of every pa- 
triot should have been kindled with a new flame, 
the most hideous feature of ancient Federalism 
— clad only in another guise — once more received 
the approbation of the House of Representatives. 
From the date of the Missouri act, in March, 
1820, a hollow truce had prevailed; and the evil 
day was postponed, thrice and again, by the 
coupling of new States together — a slaveholding 
I State with a non-slaveholding State — Missoun 
with Maine, Arkansas with iVIiehigan, Florida 
with Iowa, Texas with Wisconsin. This, sir, is 
the " peace " which the Senator from Vermont 
accuses the last Congress of having broken; and 
if this be peace, tell me, in God's name, what is 
discord ! 

From the day of its enactment, I repeat, until 
the day of its abrogation, with one exception, 
never did the representatives of the North agree 
to the line of the Missouri compromise. Some 
resisted it in the case of Arkansas, and some in 
the case of Florida. In the case of Texas, to be 
sure, they voted for its application — and because 
that would exclude slavery from a portion of the 
domain to be acquired. But in no other instance, 
sir, from first to last. I shall not relate the troub- 
lous controversy which grew out of our Mexican 
acquisitions; but as the Senator from Vermont 
was so earnest in his charge that the southern 
Senators and Representatives had repudiated a 
solemn compact, had violated the pledge of their 
fathers, had broken the faith of the nation, I must 



23 



refer to an occurrence with which he ought to be 
familiar. No Senator denies, I presume, that 
Oregon was a part of the original Louisiana Ter- 
ritory, and subject, therefore, to the terms of the 
(so called) Missouri compromise. On the 15th 
of January, 1847, whilst the Oregon territorial 
bill was before the House of Representatives, 
Mr. Burt, of South Carolina, moved to amend 
the clause in which slavery was prohibited by 
the addition of this preface: 

" Inasmuch as the whole of the said Territory lies north 
of thirty-six desrces thirty niiiuitfs north latitude, known 
as the line of the Missouri compromise." 

This was not a proposition that slavery should 
be permitted in Oregon, nor that the southern 
States, or their people, should have any imme- 
diate or practical advantage. It was only to de- 
clare that the act of March 6, 1820, was a com- 
promise in good faith; or, as the Senator from 
Vermont now calls it, a solemn compact, and to 
base a congressional prohibition of slavery upon 
the fact of its existence. The subject was de- 
bated, and came, at length, to a formal vote. 
There were 82 members in the affirmative, and 
113 in the negative — tiie former chiefly from the 
southern States, and the latter entirely from tlie 
northern States. The Senator from Illinois [Mr. 
Douglas] voted in the affirmative, and the Sen- 
ator from Vermont [Mr. Collamer] voted in the 
negative. (Congressional Globe, vol. 16, p. 187.) 
They were both members of the House at that 
time. Upon whose skirts, then, is the blood of 
this precious compromise } 

It was in the midst of a controversy whether the 
principle of the Missouri compromise should or 
should not be maintained, that the inhabitants 
of California — abandoned by Congress to all the 
miseries of anarchy on the one hand, or military 
despotism on the other — exhibited the most sub- 
lime spectacle ever presented, in my judgment, by 
a community of American freemen. Without re- 
sorting to books or political philosophers for any 
ad vice they proceeded to establish a government for 
themselves; and before Congress had determined 
whether slavery should or should not be allowed 
in that country, adopted their own State consti- 
tution and decided the question at once. That, sir, 
was a case where " popular sovereignty" came to 
the rescue, and a well-timed rescue it was. And, 
thereupon , without prolonging the old quarrel, but 
dismissing forever the ghost of the murdered Mis- 
souri compromise, Mr. Clay and Mr. Webster — 
with the venerable Senator from Michigan, the 
distinguished Senator froin Illinois, and others — 
adopted the case of California as a precedent for 
all future cases, and inserted a provision to this 
effect, at once, in the territorial bills for Utah and 
New Mexico. That compromise, too, we are 
accused of having violated. Sir, is it not won- 
derful that all the survivors of that gallant band 
which supported, and finally carried in triumph, 
the territorial acts of September, 1850, should 
now be charged with a misinterpretation of their 
own purposes and language — and this, too, upon 
the authority of a Senator (from Vermont) who 
never lifted his hand to assist in that achieve- 
ment, or of the Senators from New York and 
New HaiTipshire, [Messrs. Seward and Hale,] 
who resisted to the very last? I appeal to you. 
Senators, who — eitherin this House or the other — 
gave your votes and influence to that great meas- 



ure of peace and constitutional vindication, the 
compromise of 1850: did you not all, without a 
single exception, vote for the Nebraska bill.' 

If the compromise of 1850 was intended merely 
as the settlement of a case then before Congress, 
it was not worth one half the trouble bestowed 
in securing its adoption; and the conventions of 
the two great parties which assembled in Balti- 
more, in June, 1852, committed an egregious act 
of folly when they affirmed a case already decided , 
and beyond reconsideration. But if the compro- 
mise be, as I have always supposed, the establish- 
ment of a principle applicable in all cases, hence- 
forth and forever, it was a splendid achievement, 
and as appropriate to crown the career of Henry 
Clay and of Daniel Webster, as to vindicate the 
patriotism and mature wisdom of the Senator 
from Michigan, and inaugurate the brilliant man- 
hood of the Senator from Illinois. It was wisely 
affirmed, in that view, by the two conventions of 
which I have spoken; and m that view, undoubt- 
edly, it superseded the effect and principle of the 
Missouri compromise, and established, instead, 
the doctrine of congressional non-intervention. 

Much has been said, in late years, concerning 
the extension of slavery, and that has now be- 
come the Shibboleth of a political organization. 
If by this phrase, "extension of slavery," ia 
meant an increase of the number of slaves — 
whether by the reiistablishment of the African 
slave trade or in any other wise, I concur in all 
the objections urged; but, if it has reference only 
to the removal from one place to another, within 
the United States, of those who are already in 
bondage, and especially the removal of a master 
with his slave from a State where the excess of 
population, the exhaustion of the soil, or any 
other cause, has rendered it impossible, or diffi- 
cult, for him to provide the slave a due allowance 
of food and raiment, as the recompense for toil, 
to another State, or a Territory, where the labor 
of the slave will be productive, and will iVnprove 
the master's condition as well as his own, I am 
unable to perceive the philanthropy, or the polit- 
ical economy, which would warrant a tithe of the 
condemnations pronounced. A square "mile, in 
South Carolina, can support only a certain num- 
ber of human creatures — whether black or white 
— as all must be aware. As population increases, 
therefore, some must emigrate to regions less 
densely settled; or else, while the number of in- 
i habitants increases, the means of subsistence 
remaining the same, want, misery, and starva- 
tion must ensue. These will fall, in the first in- 
stance upon the slave, inasmuch as he is the in- 
ferior, the dependant, the subject. To him, thus 
restrained of the right of locomotion, it is an act 
of the highest beneficence that his master should 
be enabled to transport him to another region, 
more favorably conditioned, where those staples 
to the production of which alone African labor 
is adapted, can be ultimately cultivated with ad- 
vantage'. 

What would be the condition of the southern 
Atlantic States, to-day, if Kentucky, Tennessee, 
Mississippi, Alabama, Louisiana, Missouri, 
Arkansas, and Texas had not been opened to 
their colonization? Sir, instead of prosperous 
communites of white men, they would now only 
be populated by the black race — would have 
degenerated to the forlorn and even desolate con- 



24 



dition of Hayti and Jamaica. The white man 
would have been driven forth. The negro would 
remain. Instead of noble pillais, supporting the 
edifice of our Federal Union, they would be like 
those broken columns, disfigured and useless, 
which signify to the lone traveler where Nine- 
veh, and IJabylon, and Persepolis once reared 
their massive towers. Inst(^ad of burning stars, 
in the galaxy of our Republic, they would have 
been quenched by the blacknes.s of darkness for- 
ever. 

To the negro, therefore, as well as to the white 
man, to us of the northern States, to the Union 
at large, to the great cruise of ci\ ilization and 
human advancement — for our own sake, in the 
generation wiiich now lives and thi; generation to 
come, it is an affair of vital moment — of the very 
uttermost concern — that we should not commit 
the capital mistake of driving the wiiile man from 
our southern States, and abandoning more than ; 
one third of this empire to the dominion of tlie 
negro. For, such, sir, will be the end, or some- 
thing worse. As population pressc.'S upon the 
means of subsistence, year after year, the white 
race also will begin to suffer — to ijecome degraded, ' 
feeble, and defenseless — until that dread calamity ; 
supervenes, a servile insurrection, when our 
brethren of the South, with their wives and little ; 
ones, are overcome by the force of numbers, and \ 
either exterminatf d or driven from their ancient 
homes and fire-sides. Would yon, then, rccog- j 
nizc the negro as a I'ellow-citizen ? Would you [ 
permit liim to exercis^^ the political power of the 
southern States? Would you suffer some brawny 
knave, half brute and half savage, to sit in this ' 
Hall as a Senator ? No, sir, you would not ! Des- \ 

Cite the physiological comparisons, to which we 
avc listened, concerning the two races, the Cau- 
casian of the North would never associate on I 
terms of such equality with the base and inca- 1 
pable negro. He would hasten to the rescue of] 
uis kinsman in the South; he would exterminate ; 
the negro utterly from the face of the earth, or | 
else reduce that miserable race everywhere to a 
servitude more cruel, more desperate, more re- 
lentless, than ever was depicted in novel or in ' 
rhyme. 

Prom this horrible issue, sir, an easy escape 
is at hand. Let the slave, as well as the master, ; 
have room! Iiet the southern Slates, like the!; 
northern States, send forth colonics, avoid the | 
dangers of too great a population, and, while they I 
secure thus their own peace, and the peace of 
the Union, the negro liimself will receive a boon j 
more desirable than present emancipation. Have |j 
we not room, in all our western domain, for the : 
South as well as for the North ? Are there not . 
regions where cotton, sugar, and rice, can be ; 
cultivated? — staples for the production of which 
African labor is available, and even profitable; 
but to which the white laborer will not give his 
loil. The Caucasian cannot abide the heat of a 
southern summer; while to the negro that is not 
objectionable, but grateful. Have we not room, 
I demand, for all our colonies ? 

Why, sir, in the State which I represent, in 
Indiana, Illinois, Michigan, Wisconsin, and 
Iowa, there are millions of acres of the virgin 
soil — acres that await only the care of the hus- 
bandman to quit their wild luxuriance and cover 
themselves with fields of abundant grain. In 



! Arkansas, likewise, and the regions westward, 
as well as in Texas, there are lands which can 
produce rich and noble harvests; but which the 
white man, for a hundred years to come, never 
, will cultivate with his own hands. Senators! 
: you do not increase slavery, nor the number of 
slaves, lij' such a diffusion. You do not give 
this institution new power, or additional stability, 
or further advantage. You mitigate its evils; 
you postpone — if not forever avoid — the conflict 
, of two irreconcilable races; you improve llie con- 
dition of both; you point out the only chance of 
euianci|)alion — except through bloodshed — which 
the negro can ever have — the only cliancc which 
the white man will ever give him, with bloodshed 
or without, to attain the least degree of comfort 
and happiness. 

These are not alone my suggestions. They 
are the suggestions of the fathers — of Thomas 
•Tefferson, James Madison, and Jam^s Monroe, 
whose names the Senator from Massachusetts 
I invoked so many times. In all Jefferson's dis- 
quisitions upon slavery, the evils which attend 
I it, and the remedies for those evils, he m.'ver failed 
to declare that either immediate emancipation, or 
emancipation without colonization, would prove 
a bitter curse alike to the negro and the white 
man. From 1774 to 1787, as I have shown, he 
had great hopes, and an ardent desire, for the suc- 
cess of gradual emancipation, coupled with col- 
onization. He wished, therefore, to stop the in- 
troduction of slaves. He bent all his energies — 
as did Madison — to the accomplishment of that 
enterprise. How he failed, and why he failed, 
the Senator from Massachusetts has reluctantly 
testified. From that period, .Tefferson abandoned 
the idea of emancipation in his lifetime, or in any 
definite series of years, and devoted himself to 
the discovery of some method by which the evil.">i 
of slavery could be mitigated, and the chances of 
its final eradication increased? What was the 
method which he devised? You have it, Mr. 
President, in his Louisiana territorial act. It was 
to allow the citizens of the Atlantic States a lib- 
erty of removal with their slaves to the Territo- 
ries and new States; or, in his own phrase, to 
diffuse slavery over a large area, and thus avoid 
the terrors of insurrection, decrease the hardships 
of bondage, and render feasible, in some degree, 
a restoration of the .African to his fatherland. I 
do not speak without authority here; and I now 
ask the Senate to consider the evidence. In a 
letter to John Holmes, dated April 22, 1820, Mr. 
Jefferson said: 

" or one ilihig I am certain — that as the passage of slav<» 
t'roiii one State to another would not malce a slave of a Binglc 
htnnan being who would not be so without it, so their dif- 
fusion over a greater surface would niakcthcni individually 
happier, and propoitiotially facilitate the aeconiplishmenl 
of their enianci[iation, by dividing the burden on a greater 
number of coadjutors." 

Such, also, were Madison's views. In a letter 
to President Monroe, dated February 23, 1820, 
that eminent statesman said: 

" I have certainly felt all the influence that could justly 
flow from a conviction that an uncontrolled dispersion of 
the slaves, now within the United States, was not only best 
for the nation, but most favorable for the slaves also — both 
as to their prospects of emancipation, and as to their con- 
dition in the mean time." 

But a complete exposition has been written for 
us by the hand of James Monroe. That he was 
in constant and confidential correspondence with 



25 



Jefferson and Madison during the whole Mis- 
souri contest, is now clearly established. He 
received advice from them, and coincided with 
their opinions, as well as sympathized entirely 
in their sentiments. That he yielded, with great 
reluctance, to the prohibition of slavery in the 
national domain north of 36° 30', is too well 
ascertained, and solely upon the suggestion that 
no other compromise appeared to be practicable. 
At one period, it seenr\s, he determined to inter- 
pose the veto power, and actually prepared a 
message, the draft of which, in his own hand, is 
yet extant. It contains a full decision of every 
point embraced in this debate; but I will read, at 
present, only the last two or three paragraphs: 

"That should the slaves be confined to the States in 
which slavery exists, as liie free population will continue 
to emigrate, the disproportion between them will, in a few 
years, be very preat; and at no distant period the whole 
country will fall into the hands of the blacks. As soon as 
this disproportion rea(>hes a certain stale, the white popula- 
tion would probably abandon those States to avoid insur- 
rection and massacre. What would become of the country 
in that state.' Would the General Government support 
tlie owners of the slaves in their authority over them, after 
the States, individually, had lost the power.' or the slaves 
being in possession of those States, and independent of their 
owners, woiyd the States be recognized as belonging to 
tliem,and their Representatives be received in Congress? 

"That it would be better to compel the whites to remain, 
and the blacks to move," &c. 

" That slavery is nottheottspringof the Revolution ; that 
it took place in our colonial state ; that all further importa- 
tions have been prohibited since the Revolution, under laws 
which are rigorously enforced ; that in our revolutionary 
struggle the States in which slavery existed sustained their 
ahare in the common burdens, furnished their equal quotas 
of troops, and paid their equal share of taxes ; that slavery, 
tliough a national evil, is felt most seriously by the States 
in which it exists ; that it would be destructive to the whites 
to confine it there, and to the blacks, as the distribution of 
them over an extensive territory, and among many owners, 
will secure them a better treatment ; that the extension of 
it to new States cannot possibly injure the old, as they will 
cl.aim all their rights, since no attempt can ever be made or 
idea entertained of requiring them to admit slavery ; that 
an attempt to fix on the States having slavery any odium, 
is unmerited, and would be ungenerous." 

Sir, I can add naught to this testimony or these 
arguments; and if the Senator from Massachu- 
setts would follow the exaniple of the sages and 
patriots of our Revolution — would hearken to 
their counsels, and walk in theirpaths — how much 
better for himself, and for us all ! It is the way 
of rfie Constitution — a rigorous maintenance of 
equality between the States. 

I have no fears of competition between the 
labor of white men and the labor of slaves in 
our Territories, or, indeed, elsewhere. There 
is ample space, ample occasion for both. The 
labor of the one cannot be successfully bestowed, 
at present, upon those pursuits which are adapted 
to the labor of the other. Let the citizens of each 
State, or Territory, decide for themselves, with 
a view to their own wants and condition, whether 
slaves shall or shall not be admitted. Lotus have 
no prohibitions by act of Congress — no arbitrary 
lines. That was a dangerous and almost fatal 
error. The wonderful prescience of Jefferson 
alone was not deceived by the Missouri compro- 
mise; and all his predictions have been fulfilled. 

Mr. President, I am neither an enemy of the 
negro, nor a friend of the institution by which he 
is subjugated. I wish the negro well. I wish 
him liberty and happiness — but I wishhimliberty 
at such time, in such circumstances, and by such 
means, as will not debase and ruin the white man, 



or overthrow the great safeguards of our own 
liberty, and the liberty of those in whom we are 
most interested. Let the negro have, at present, 
as much comfort and happiness as, in his condi- 
tion, can be attained. Let him not be restrained 
by limits within which he must either perish or 
subdue his master. He will not be made free by 
our intervention. Congress can do him no ser- 
vice. Congress can only, whenever it interferes, 
add to the sorrows of his condition. Whether 
the negro be capable of higher civilization — and, 
if so, when or how he will attain it, — these are 
questions I am not able to decide. He is now, 
even as a slave, far advanced in the scale of prog- 
ress, beyond all his brethren in Africa. Free- 
dom, thus Air, has not advantaged him. The 
condition of free negroes, in the non-slaveholding 
States, is worse even, and more pitiable, than 
that of the slave. I do not speak of exceptional 
cases — of such as have risen, occasionally, above 
the level of their race — nor of negroes in the north- 
eastern States, or in the northern portion of my 
own State. There are not enough , in these local- 
ities, to excite the prejudices of the white man. 
I speak of those thousands and tens of thousands 
scattered along the Ohio river. In Cincinnati, 
alone, there are thousands of such who have lit- 
erally no rights — menials in every sense — without 
protectors or protection — eking out a miserable 
existence, dependent on public and private char- 
ity, spending a largo part of their lives in prison, 
exposed to abuse and outrage of every description. 
It IS a hopeless condition, Mr. President, because 
the free negro has no friends. He does not enlist 
the sympathy of Abolitionists — for he cannot 
vote, and no assault can be made, through hini, 
upon the security of the southern States. Indi-' 
ana and Illinois drive him from their borders; and 
if he should turn even to the " free State" men 
of Kansas — to the men who are " now battling," 
as the Senator from Massachusetts declares, " for 
the liberty of all," they, too, would exclude him 
by a fundamental act. 

At one period of our history, as I have said, 
the emancipation and colonization of the African 
was quite practicable. Then did Massachusetts 
interpose; and the foreign slave trade, under her 
protection, was too powerful, and, in the end, 
victorious. But now, sir, a Senator from Mas- 
sachusetts rises to denounce the conduct of those 
who controlled the destinies of his State, in past 
time, as utterly infamous. " The acknowledged 
turpitude," he called it, "of a departed genera- 
tion." That Senator deals largely in the classics; 
and I commend him to the words of the Roman 
poet who rejoiced that he had never defiled the 
ashes of his fathers. Sir, I do not owe Massa- 
chusetts any allegiance; I have not a drop of her 
blood in mv veins. But I will defend the memory 
of those whom the Senator assailed. They were 
wise, and even humane, according to the measure 
of their generation; would that we might all be 
as worthy in our own ! These were the men who 
gave Massachusetts her glory, her wealth, her 
freedom. And when the Senator paraphrased 
that great adjuration of Demosthenes, he did not 
appeal to the spirits of modern times, of the men 
who imagine themselves so much better and 
more philanthropic than all their ancestors — but 
to the spirits of the mighty dead — of those 
I who, although they tore the African from his 



26 



home and- sold him into bondage, would not be 
slaves themselves — who trampled under foot the 
British stamp-act and overthrew the British nav- 
igation laws — who first, at Lexington, and Con- 
cord, and Bunker Hill, resisted a monarch in 
arms, and poured out their blood to fertilize that 
soil wlience grew the tree of American independ- 
ence. And, sir, if the Massachusetts of this 
day does condemn the Massachusetts of yester- 
day with such bitterness and mortification as the 
Senator pretends, let her now contribute from the 
stores of that immense wealth which the Sena- 
tor has boasted, to assist the southern States in 
restoring to Africa the descendants of the captive 
whom she brought hither. 

The new Shibboleth, of which I have spoken, 
is not uttered for the sake of the slave; it does 
not touch the question of humanity at all. It is 
only the watchword of a political crusade, and 
employed to advance the project of humihating 
and subjugating the southern States. To be sure, 
sir, wc have heard of the three-fiftlis clause, so 
called, as one which should not be extended, in 
its effect, by the admission of new slaveholding 
communities; But how can this be material to 
the argument? Each slave will be counted, in 
the apportionment of taxes and representation, 
whether he remains in Carolina or is taken to a 
new State. Opposition to the three-fifths clause, 
in the Constitution, is another point of doctrine 
taught by the Hartford convention. Why, sir, 
what is this clause? It is only that, in the ap- 
portionment of representatives, as well as direct 
taxes, five southern negroes shall be estimated as 
tliree white men. If the " Republican" orators, 
so called, would denounce this clause for a dif- 
ferent reason — if they arraigned the Constitution 
because it had stripped from the slave two fifths 
of his humanity and thus reduced him to a frac- 
tion of manhood — there would be some consist- 
ency, at least, in their behavior. 

Why should not the southern negroes be 
counted? The northern negroes are counted — 
not as five to three, but as five to five. So are 
women, children, persons not naturalized, luna- 
tics, idiots, and criminals. If the southern negro 
be a human creature, although a slave, why 
.should he not be counted as such? Sir, I wih 
tell you ? This was a compromise — not one which 
the South desired, but one which was forced upon 
her by the northern delegates. They admitted 
that the slave was a man; but, said they, he is 
also the subject of ownership, and of taxation! 
And so they proposed, and the South agreed, 
that only three fifths of a slave should be esti- 
mated for representative purposes; and, as a 
racompense for the disadvantage, that direct taxes 
ehould be levied in the same ratio. Thus the 
compact was made, and thus it should be main- 
tained. 

But, sir, the struggle is not for the other House 
of Congress: it is for this House, and for the 
presidential chair. The northern States are 
exhorted to unite against the southern States. 
Wherefore? To prevent the admission of a new 
slaveholding State ? How does that injure us ? 
Beyond thu limits of delegated power in the 
Constitution, Ohio cannot be affected by the 
action of the Federal Government. She is sover- 
eign. She is, in all other respects, independent. 
If the Constitution were faithfully executed, in 



spirit and in letter, it could make no difference to 
us in Ohio, as regards our prosperity, our rights, 
our domestic affairs, if all other States of the 
Union tolerated, and even cherished, slavery as 
an institution. And so, if the Constitution be faith- 
fully observed henceforth, it is of no consequence 
— not the least — whether the slaveholding or the 
non-slaveholding States be the more numerous. 
The Senators from Massachusetts and New 
Yorkhave marshaled their cohorts to "dislodge" 
the South from "high places." This, sir, is 
but the prelude to something else. The control 
of our Federal Government, when obtained, will 
enable their partisans to chastise, afiiict, and lay 
waste one half the Union. It cannot be done, of 
course, as long as the Constitution is observed; 
and, therefore, the design may be expressed, 
more distinctly, as a design to usurp the Federal 
Government, in order, by the force of mere num- 
bers, to disregard and destroy the Constitution 
of the United States. Sir, it can terminate in 
nothing else. Even if Senators on the other side 
were ever so sincere in the declaration that they 
will not concern with slavery as it now exists in 
the States, they could not keep such an assur- 
ance; they would be overborne by their own fol- 
lowers; and either compelled to violate their word, 
or give place to others less scrupulous. For 
whenever this triumph of sectionalism shall be 
complete — if so terrible a calamity can occur — 
the men whom you have taught to believe that 
slavery is wicked above comparison, and there- 
fore must be prohibited in the Territories, and 
abolished in the District of Columbia — the men 
who have learned, from you, to interpret tlie 
Constitution as they please — will insist that pub- 
lic duty, the voice of conscience, the higher law, 
all impel them to liberate the African at once. 
And you must yield to the demand — or else, like 
the Girondins, be hurled from your places and 
sacrificed to the wrath of the demons you will 
have raised and inspired. Then would the sat- 
urnalia be celebrated — as when the negroes of 
Hayti were emancipated, suddenly to turn upon 
and exterminate their masters; when the guillo- 
tine would be restored, perhaps for the punish- 
ment of those southern "aristocrats" against 
! whom the Senator from New York inveighed 
! with so much bitterness. When some new ""em- 
, bassy of the human race" would wait upon the 
j Senate, with another Anacharsis Clootz at its 
I head, and behind him the froward women and 
i imbecile men, white and black, native and for- 
eign, whose congenial occupation is only to outdo 
each other in profane and foolish tirades — when 
the Deity would be dethroned by formal resolu- 
tion, the places of His worship converted into 
recruiting stations, and the ministers of His gos- 
pel habitually indulge the arts of an auctioneer. 

I implore you. Senators, to pause, to survey 
the narrow isthmus on which we stand. This 
combination of the northern States against the 
southern States, where will itterminate ? Already 
from this Chamber the dread appeal has gone 
forth. It will either remain unanswered — thanks 
to the wisdom of the people — or it will come back, 
in another session, with millions of fearful echoes; 
and each echo the knell of ruin. 

Not such, Mr. President, were the appeals of 
Washington, or Jefferson, or Jackson. The 
slightest discord between the North and the 



27 



South grated harshly on their ears, and filled 
their hearts with pain. Jefferson turned from the 
very verge of his grave to declare: 

" The Missouri question, by a geographical line of divis- 
ion, is the most porlciit<Ms one I liave ever contemplated." 
(Letter to Monroe, March 3d, 18-20.) 

Jackson has warned us, in immortal accents, 
to beware of Abolitionism in all its Protean shapes. 
And where, sir, could we find a more appropri- 
ate commentary on the speeches of the Senators 
from New York and Massachusetts than is con- 
tained in the Farewell Address of George Wash- 
ington.' The reference is familiar, and, it may 
be, iiackneyed; but when the citizens of fifteen 
States are personified by an offensive title — "The 
Slave Pou'cr" — and thus exposed to the hatred 
of their fellow-citizens — when to the most flagrant 
misrepresentation of their opinions and aims is 
added the assault of new parties, public and 
secret, political and religious, based solely on geo- 
graphical discrimination; — when I see all these 
signs, Mr. President, I know that the awful crisis 
has come at last — the crisis in which the people 
of the United States must either turn with affec- 
tion, with gratitude, with confidence, to the 
admonitions of Washington, or turn away to 
destruction forever! If the millions of simple- 
hearted agriculturists, mechanics, and laborers 
— men too honest themselves to suspect others of 
deceit and falsehood — do not arouse, and that 
speedily, vain are all theories of popular govern- 
ment— -vain the wisdom of sages — vain the faith 
of patriots — vain the blood with which " the 
noble army of martyrs" has testified in past time, 

Mr. President, awful as may be this crisis — 
impending the issues of life and death to us, to 
our beloved country, to freedom, to civilization, 
nay, sir, even to the African himself — my hope 
does not fail. The Senator from Massachusetts 
took occasion to inform us, to be sure, that he [ 
and those who are associated with him in polit- 
ical action will achieve a complete victory m the '■ 
course of the present year. I am not a prophet, 
sir, as that Senator assumes to be; I am only an 
humble, devout, and trustful believer in the ways . 
of Divine Providence. But I find in the Holy 
Book which has been written for our guidance : 
in both temporal and spiritual affairs, a text | 
worthy of the Senator's consideration: " Let not \ 



him that girdelh on his harness boast himself as he 
that putteth it off!" The Senator has a desperate 
conflict before him — one where he will be resisted 
with a courage so brilliant, a zeal so virtuous, a 
perseverance so stubborn, that the very stars, in 
their courses, will seem to fight against him as 
they fought against Sisera of old. The Senator 
need not flatter himself by arguments drawn 
from the year 1854. That tempest of delusion 
has nearly spe^it its strength; it was sudden, but 
short-lived— desolating in the assault, but soon 
to be followed by grateful rains which will rein- 
vigorate the seeds of patriotism once sown in the 
hearts of the American people, and since parched 
and withered, alas ! by the great material pros- 
perity we have so long enjoyed and abused. 

The future, Mr. President — the future! Let 
the Senator from Massachusetts look forward, 
and tell me whereabout, in the whole horizon. 
North or South, East or West, he can descry a 
single omen of that stupendous misfortune with 
which he proudly threatens us. Sir, it must be 
otherwise. God is morciful, and in His mercy 
will I trust. From the trials of the last two years 
—from all the gloom of bigotry, fanaticism, and 
public demoralization, so predominant, a new 
and more splendid procession of events in our 
history must begin— the age of principles, more 
comprehensive, more equttable, more salutary, 
than have been taught since that fearful Missouri 
question first shook the Republic from its center 
to its extremities: 

Magnus ab integro saeelorum nascitur ordo : 
Jam redit et Virgo, redeunt Saturnia regna ! 
The clouds of sorrow break away from our 
enraptured vision; and already, upon the firma- 
ment above, behold emblazoned in eternal char- 
acters the triumphant signal of the Union of our 
fathers — the Constitution by which that Union 
was established — the civil and religious liberty 
of which the Union and the Constitution are such 
magnificent and perpetual guarantees. Senators! 
Let us all rejoice in this mighty deliverance. Let 
us not only take a better resolution for the con- 
troversies which environ and waste our lives, but 
gather fresh and pure hopes for the untold millions 
who will lift their eyes to these heavens after we 
shall have finished our days on earth, and gone 
to sleep as all our fathers have gone. 



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